SANDS & MOERS (No.2)
[2013] FCCA 1371
•19 September 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SANDS & MOERS (No.2) | [2013] FCCA 1371 |
| Catchwords: FAMILY LAW – Child aged eleven years – arrangements for interim care – parties have toxic relationship – child has lived predominantly with father and spent alternate weekends and holidays with mother since consent order made in June 2011 – mother withheld child following alleged disclosures of physical abuse by father made by the child – allegations made in electronically recorded record of interview with police – child has allegedly subsequently recanted allegations in further electronically recorded interview with police – child alleged to have indicated to police and father that mother forced him to fabricate claims of abuse against father – child ordered to attend on family consultant to take part in child inclusive family dispute resolution conference – child has indicated to family consultant his desire not to spend time with his mother until he is eighteen – weight to be given to child’s views at the interim stage – protective concerns – assessment of risk – meaningful relationship – best interests. |
| Legislation: Family Law Act 1975, ss.4(1); 60B; 60CC; 61DA; 65DAA |
| Cases cited: Moers & Sands [2011] FMCAfam 47 |
| Applicant: | MS SANDS |
| Respondent: | MR MOERS |
| File Number: | ADC 2864 of 2007 |
| Judgment of: | Judge Brown |
| Hearing date: | 23 August 2013 |
| Date of Last Submission: | 23 August 2013 |
| Delivered at: | Adelaide |
| Delivered on: | 19 September 2013 |
REPRESENTATION
| Counsel for the Applicant: | Ms Basheer |
| Solicitors for the Respondent: | Clelands |
| Counsel for the Respondent: | In person |
| Solicitors for the Independent Children’s Lawyer: | Legal Services Commission |
| Counsel for the Independent Children’s Lawyer: | Ms Lindsay |
ORDERS
Prior to 1 December 2013 the father and the mother enrol at the [C] Children's Contact Centre to assess their respective suitability to take part in the supervised contact process.
In the event the parties are assessed as suitable to take part in the supervised contact program the mother spend time with the child of the relationship [X] born 16 January 2002 (herein after referred to as “the child”) as follows:
(a)On six occasions fortnightly occasions, following 1 December 2013, at the [C] Children's Contact Centre, at such times as may be allocated by the Director of the Centre or her nominee and subject to the following conditions:
(i)The time be supervised by the Director of the Centre or her nominee;
(ii)There be no more than one visit per fortnight not exceeding two hours in duration;
(iii)The visits take place at the expense of the mother;
(iv)After the conclusion of six such visits a report be prepared by the person or persons undertaking the supervision as to the progress of the visits and the demeanour and conduct of the child and mother;
(v)The report envisaged by order 2(a)(iv) hereof be prepared at the expense of the mother.
Until further or other order and subject to the provisions of order (2) hereof all previous orders pursuant to which the mother spends time with the child are suspended.
The proceedings relating to the child be adjourned until 18 March 2014 at 9:30am.
IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of Judge Brown delivered this day will for all publication and reporting purposes be referred to as Sands & Moers (No.2).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADC 2864 of 2007
| MS SANDS |
Applicant
And
| MR MOERS |
Respondent
REASONS FOR JUDGMENT
Introduction
Once again, I am called upon to make parenting arrangements concerning [X] born [in] 2002. I do so with a heavy heart. There seems to be no end to the disputation and conflict surrounding [X].
On 29 June 2011, comprehensive orders were made, which resulted in [X] living predominantly with his father, Mr Moers and spending time with his mother, Ms Sands, on alternate weekends and during school holidays. This was a significant change in previous arrangements, which had seen [X] living mostly with his mother.
The orders also provided for Mr Moers to have parental responsibility for issues pertaining to [X]’s health and education and for [X] to remain enrolled at [S] School for the remainder of his primary education.
These orders were made, ostensibly with Ms Sands’ consent, following a hearing, which had commenced but not concluded. The hearing had involved evidence being taken from the principal of [S] School and one of [X]’s teachers at the school.
The tenor of the evidence from [S] School was that the school authorities were greatly concerned at what they perceived to be Ms Sands’ detrimental emotional influence in [X]’s life. The school did not think that they could continue to work effectively with Ms Sands in future. They did not hold similar concerns in respect of Mr Moers.
In addition, during this hearing process, evidence was taken from Mr P, a psychologist and family consultant, who had prepared two family reports to assist the court in determining how [X]’s interests could best be served. Mr P was strongly in favour of [X] remaining at [S]’s and living with Mr Moers.
[X] was independently represented in the proceedings, which led up to the orders of 29 June 2011. The independent lawyer for [X] was in favour of the orders made on 29 June 2011. I published extensive reasons, in January of 2011, which explained in detail, why I had decided to move [X] to his father’s care.[1]
[1] See Moers & Sands [2011] FMCAfam 47
Regrettably, this was not the end of litigation between the parties.
Ms Sands commenced contravention proceedings on 30 March 2012, alleging that Mr Moers had breached the orders of 29 June 2011 on nine occasions. Ultimately, Ms Sands withdrew her contravention application.
This led to Mr Moers seeking a costs order against Ms Sands. It was his position that the contravention application was wholly unwarranted and, as it had been withdrawn, he was entitled to be reimbursed some of his costs. Ultimately, I determined the costs issue in Mr Moers’ favour and again provided reasons in support of my decision.[2]
[2] See Sands & Moers [2013] FMCAfam 28
It is common ground between the parties that Ms Sands did not comply with the order requiring her to pay Mr Moers’ costs. As a consequence of this omission, Mr Moers began proceedings, in this court, to enforce the costs order against Ms Sands.
His application for enforcement of the relevant costs order was filed on 24 May 2013 and apparently served on Ms Sands a few days later. [X] spent the weekend of 1 and 2 June 2013, in his mother’s care and was nominally due to be returned to Mr Moers, at the [C] Children's Contact Centre, on Sunday, 2 June 2013.
At 7.35pm, on 2 June 2013, Ms Sands sent an email, in the following terms, to Mr Moers:
“Mr Moers,
[X] will not be returning to your care at this stage.
You will be notified in due course.
The school, [C] Children's Contact Centre and the police are all away (sic) as to why [X] is not returning to you.
Ms Sands”[3]
[3] See annexure SLM1 to the father’s affidavit filed 6 June 2013
This led to Mr Moers making a further application to the court on 6 June 2013 seeking the return of [X] to his care, in accordance with the orders of 29 June 2011. At his request, the application was listed urgently on 7 June 2013. It is Mr Moers’ position that the retention of [X] was related to his application to enforce the costs order in his favour.
The mother had not an opportunity to respond formally to the application, prior to its listing. Her solicitor submitted that Ms Sands had retained the child because he had made disclosures of suffering serious physical abuse from Mr Moers, which had been confirmed in an interview with police, at [H] Police Station, on 1 June 2013.
Notwithstanding this potentially serious allegation, given my knowledge of the difficult and conflicted circumstances of the parties, I came to the preliminary view that it would not be in [X]’s best interests to be further separated from his father.
It was also the position that [X] was not attending school at [S]. I came to the conclusion that it was likely to be helpful to [X] for the arrangements for his care to normalised as much as possible.
Accordingly, on 7 June 2013, I ordered that the mother return [X] to the father, at the child care centre at the court building. I also directed that [X]’s return be supervised by a family consultant, Ms K.
Family Consultant Ms K became engaged in the process of overseeing [X]’s return to his father’s care as a consequence of the provisions of section 65L of the Family Law Act, which empowers the court to make an order for acquiring compliance with a parenting order, as far as practicable, to be supervised by a family consultant.
In conjunction with this role, I asked Family Consultant Ms K to provide a brief report to the court detailing her observations of the interaction and reaction of the father and [X], at the time [X] returned to Mr Moers’ care.
Family Consultant Ms K reported as follows:
“Prior to the father attending the child care, [X] appeared comfortable and chatted to the Family Consultant and the Child Care worker. He mentioned that he had not been to school of late because his father might attempt to pick him up from school. The Family Consultant observed that this information was passed in a matter of fact manner, and [X] did not appear distressed when discussing this.
When Mr Moers entered into the child care area, [X] was observed to react by immediately rushing to his father to given him a hug. Mr Moers hugged [X] in return. Both Mr Moers and [X] appeared emotional, both displayed tears and were observed smiling tearfully at one another. Following their reunion,
Mr Moers established that [X] was “OK” and prepared to depart child care. Mr Moers asked if [X] had all of his belongings, to which [X] responded that he did not have his football gear as it was at his mother’s house. Mr Moers and the Family Consultant assured [X] that there may be a spare Guernsey for him to use or borrow and Mr Moers assured [X] that they would sort it out. Mr Moers and [X] departed the child care centre both displaying affection toward one another and both smiling.
The overall impression gained by this exchange between Mr Moers and [X] was that [X] was happy and emotional at seeing his father, and that Mr Moers appeared relieved and emotional at seeing [X]. At no time were signs of distress displayed by [X].”
Pending further investigation of the mother’s allegations, I also determined to suspend the aspect of the orders of 29 June 2011 authorising [X] spending time with his mother. I accept that this was an unusual step, particularly at the interim stage.
However, I was concerned at what I considered to be the significant possibility that Ms Sands was in some way orchestrating [X]’s complaints of mistreatment. If this was the case, I was concerned that this would be very emotionally detrimental for [X], whom I regard to be a vulnerable child.
In this context, on 24 June 2013, I made a further order re-appointing an independent children’s lawyer for [X]. I was anxious that [X] be protected, as much as possible, from the potentially adverse emotional consequences of yet more bitter litigation between his parents. [X] has not spent any time with his mother since 7 June 2013.
Ms Sands filed an affidavit, in support of her position, on 8 July 2013. The orders of 29 June 2011, provide for [X] to spend alternate weekends, during school terms, with Ms Sands from 5:00pm Friday until 5:00pm the following Sunday.
According to the orders, [X] is to be exchanged between the parties at the [C] Children's Contact Centre but in the event the centre is not open, he is to be exchanged between the parties inside the [H] Police Station.
Amongst other complaints addressed to Mr Moers’ parenting of [X], Ms Sands alleged that [X] had recently informed her that Ms M, who is Mr Moers’ current partner, had said to [X] “your dad has given me permission to bash you and I am going to have so much in doing so.”
It is Ms Sands’ position that [X] has repeatedly told her that he does not wish to return to his father’s care because he has suffered abuse at Mr Moers’ hands. In addition, she alleges that [X] has told her that Mr Moers consistently denigrates her to [X] and this is emotionally harmful to the child.
Ms Sands also alleges that many of her interactions with Mr Moers, at handover, are characterised by Mr Moers and those associated with him abusing and threatening her.
Ms Sands asserts it was in connection with this behaviour, on Mr Moers’ part, that she and [X] attended at the [H] Police Station on 1 June 2013 and not for any purpose related to complaints made by [X] himself.
Ms Sands’ alleges that it was in this context that [X] spontaneously indicated to the police officer, who was dealing with her complaint about Mr Moers’ alleged misbehaviour at handover, that he wished to speak to her (the police officer) about his father’s mistreatment of him during the periods of time he has lived with Mr Moers.
Accordingly, Ms Sands categorically denies that she has orchestrated, in any way, [X]’s complaints of having suffered abuse at his father’s hands. She does however concede that she jotted down some dot points to assist [X] to raise all the points he wished to do so with the police.
Mr Moers responded to this affidavit on 22 July 2013. He denies that he has assaulted [X] in any way. It is his position that [X] told him that his mother had told him to read out what she had written to the police otherwise “she [Ms Sands] would cut off my hands”. On Mr Moers’ case, this caused [X] considerable anxiety.
It is currently Mr Moers case that [X] is frightened of his mother and, as a consequence does not wish to spend any time with her. In addition, he is fearful that, if he does spend further periods of time, with Ms Sands, he may be compelled to inform against his father once again.
In this context, Mr Moers asserts that [X] was insistent that he speak to the police again to set the record straight. As a consequence of this alleged insistence, Mr Moers arranged for [X] to speak to another police officer, at the [S] Police Station, on 11 June 2013.
For obvious reasons, I was troubled at this complex and conflicted situation surrounding [X], particularly in the context of my earlier findings regarding his past parenting.[4] In the latter judgment, I described the level of conflict between [X]’s parents as being “extraordinary”.
[4] See Moers & Sands [2009] FMCAfam 1354 and Moers & Sands [2011] FMCAfam 47
I also found that Mr Moers was better placed to meet [X]’s emotional and educational needs. I reached this conclusion after hearing evidence from Ms D, who was the Principal of [X]’s school. Ms Sands had wished to remove [X] from [S]. In the second judgment, I wrote as follows:
Like Mr P, I was impressed with the dedication and professionalism of Ms D. I accept that [S]'s is a good school, which continues to have much to offer [X]. [X] has attended at [S]'s since his reception year. As a result, the school authorities are familiar with his needs and circumstances. As such, it is Mr P’s opinion it would not be good for [X] to try another school.
For a variety of reasons, Ms Sands is not well disposed towards [S] School. A state of affairs reciprocated so far as Ms D and her staff are concerned for Ms Sands. No matter where the fault lies, it is clear to me that Ms Sands and [S]'s are incapable of working constructively together to provide [X] with the support that he so urgently needs.
At this stage, I can see no viable alternative for [X], other than that he continues at [S]'s, where it is hoped that he can receive counselling and remedial educational support. In my view, the evidence at this stage indicates that Mr Moers is better placed than Ms Sands to ensure that [X] does have a mental health plan and is provided with the emotional support that he needs to do better at school.
I appreciate that it is a significant thing to change long standing arrangements for a child in the middle of a final hearing, particularly given that I have not heard evidence from the parents concerned. However, I am satisfied that [X] is currently a child gravely in risk of education failure, which of itself has implications for his long term well being. As such, I am satisfied that serious remedial measures need to be taken to prevent this situation becoming more entrenched.
…
Given that I have determined that [X]’s best interests will be served if he lives more with one parent than another, at this stage, necessarily this parent must be Mr Moers, who is better placed, it seems to me, to work with [X]’s school and ensure he receives appropriate counselling and other psychological support.
…
At this stage, I am satisfied that Mr Moers is better placed to ensure that [X] completes any homework set for him and attends at school regularly and for the full day. It also seems to be the case that Mr Moers will be able to negotiate [X]’s return to the out of hours school care program at [S]'s.
The level of conflict between the parents in this case is extraordinary. I accept that it is having a detrimental effect on [X]. As such, it seems that the parties have to be quarantined from one another, particularly on school premises and at other activities in which [X] engages.
In addition, Ms D has been concerned about aspects of Ms Sands’ behaviour on the school premises, particularly her photographing of [X] and other parents and her threat to have a private investigator attend at the school to provide surveillance of [X]. As a consequence, I will make the orders proposed by the Independent Children’s Lawyer to deal with these issues.[5]
[5] Ibid at 172-186
Family Consultant Mr P had prepared a family report prior to [X] being placed in his father’s care. He was asked to revisit the family following this placement, and as a consequence, provided a second family report, which was available to the parties prior to the final consent order of 29 June 2011.
Given his familiarity with the dynamic of the family and the parties diametrically opposing views as to what were [X]’s views in the matter, it seemed useful to me that I once again engaged Mr P to provide advice to the court as to the best means forward.
As a consequence, on 30 July 2013, I ordered that [X] take part in a child inclusive conference, with Mr P, pursuant to the provisions of section 11F of the Family Law Act. In particular, I asked Mr P to provide details to the court, regarding [X]’s wish, if any, to resume spending time with his mother.
In addition, at the instigation of the independent children’s lawyer and with Ms Sands’ consent, an order was made for Ms Sands to be psychiatrically examined by Dr B. The proceedings were adjourned until 23 August 2013 to allow for [X] to be interviewed by Mr P and for Ms Sands to be psychiatrically examined by Dr B.
Mr P reported to the court as follows:
[X] presented as confident, and assured in his demeanour and spoke with apparent openness and insight about his experience and views. There was no indication in his presentation that he had been coached or pressured by anyone else in the formation or expression of his views. His affect, which was sometimes angry and frustrated in tone as he recalled his experience with Ms Sands, was congruent with the information being provided. The content and language used in his provision of information was consistent with his age and stage of development.
[X] was clear, consistent, and adamant in his expressed view that he does not want to spend any time with, or have any communication with Ms Sands. He stated, for example, “I just want it so stop. I don’t want to see her again. I don’t want to see her again until I’m 18”. He reiterated this view each time I explored this with him over the course of the interview.
[X] provided a coherent, well reasoned explanation for his views, which appeared to be entirely consistent with his own needs. He described several aspects of Ms Sands’s behaviour towards him, which he has experienced as distressing and detrimental to his wellbeing. According to [X] each time he had seen Ms Sands in the last two years, initially, “She would hammer me with a heap of questions. She would hammer me and hammer me and hammer me”. [X] explained that the questions were about his activities and experience with Mr Moers, which he attempted to deflect with repeated replies of “I don’t know”.
[X] also stated that Ms Sands had repeatedly instructed him to misbehave at Mr Moers’s home and at school, to damage the property of others, and to act violently towards others including Mr Moers’s partner and child. When asked what he thought might be Ms Sands’s motive for this behaviour he stated, “Because she (Ms Sands) wants to hurt me, [Y] (Ms M’s daughter), my dad, and Ms M (Ms M, Mr Moers’s partner). [X] appeared to be distressed as he provided this information.
[X] also expressed frustration that Ms Sands often speaks about Court Orders and her hostility towards Mr Moers. He stated, “She just goes on and on and on about Court Orders. It’s not funny”. In addition he said that he is not allowed by Ms Sands to speak about Mr Moers, and if he does so, Ms Sands is likely to respond in a hostile punitive way.
[X] spoke about his distress at being recently interviewed by the police at Ms Sands’s instigation. He said, “We went to the police station. She wrote down a whole bunch of things. She said if I don’t say them to the police officer [name omitted], she’ll cut off my hands”. He said that he had been “shocked” and “scared” by Ms Sands’s threats, and that he was “terrified that she would actually do it”.
According to [X]’s account his emotional wellbeing has improved significantly since his time with Ms Sands had been suspended in June 2013. He said that the conflict between himself and Mr Moers’ partner has ceased, and their relationship has improved, he is happier at home and school, his achievement at school has improved, and his sleep is no longer disturbed.
[X] described a contented well functioning life with Mr Moers, Ms M, and her daughter, and talked about each of them with affection and enthusiasm.
[X] was asked if there was anything that Ms Sands could do to enable him to feel comfortable and safe in seeing her again. He replied, “Mum needs to stop and get some help”. When asked if he thought this could occur, he was not hopeful, stating, “No way would there be any chance”.”[6]
[6] See family consultant memorandum to court dated 6 August 2013
As a consequence of [X]’s statements to him, Mr P concluded that it was likely that [X]’s expressed wishes to him and his described experiences accurately reflected [X]’s experience with his mother. As a consequence, it appeared to Mr P that it was not likely to be in [X]’s interest to spend time with or communicate with Ms Sands at this stage.
Ms Sands reported to Dr B that she felt emotionally well. She denied being a negative influence on [X] and repeated her concern that Mr Moers was unduly influencing him against her. Dr B could find no evidence, in Ms Sands’ presentation to him, of any psychiatric disorder.
The positions of each of the parties
It is the father’s position that the court needs to give very significant weight to the expressed views of [X] to Mr P. In addition, it is Mr Moers’ view that [X] is at significant risk of sustaining some form of psychological harm, if he interacts with his mother, in any form whatsoever, in the reasonably foreseeable future.
Ms Sands stands by her allegations that [X] has made significant complaints of having sustained abuse, including physical assault, at the hands of his father and Ms M, which were spontaneously made to a police officer, at the [H] Police Station, without any influence from her. In these circumstances, she is anxious to spend as much time as possible with [X] and believes that he is likely to be fretting for her.
In addition, Ms Sands is sceptical in respect of [X]’s purported statements to Mr P. She believes that it is likely that [X] has been coached by Mr Moers in respect of the interview with Mr P.
Counsel for the independent children’s lawyer, Ms Lindsay agrees that protective concerns, relating to [X], should be to the forefront of the court’s deliberations in the matter. However, she further submits that the court ought to give earnest consideration to [X] spending time with his mother, provided that time is subject to rigorous professional supervision.
It is probable that it would take some weeks for the parties to be accepted into any supervised contact program in suburban Adelaide. The waiting time is likely to be between six and twelve weeks, depending on the centre selected. This delay is likely to give [X] some breathing space, which Ms Lindsay submits is likely to be helpful for [X].
Ms Lindsay does not advocate any significant changes to the current arrangements for [X]’s care. It is implicit in her position that she does not consider the evidence currently available to the court supports the contention that for [X] to remain living predominantly with Mr Moers would constitute an unacceptable risk to [X]’s safety.
The nature of an interim hearing
The proceedings before me have been in a truncated form. As yet, there has been no time for either of the parties (and indeed Mr P) to provide evidence on oath and more importantly for that evidence to be subjected to scrutiny through a process of cross-examination.
Accordingly, at this stage, I am not able to make any definitive findings of fact as to whether [X] has been subject to serious abuse, by either his father or his mother and indeed whether [X] has been manipulated and primed by one or other of his parents.
Indeed, it may ultimately be impossible for the court to make any concrete findings of fact about the alleged assaults in question. Given his age, [X] himself will not give evidence in the proceedings. The allegations of the parties themselves are unlikely to remain uncorroborated.
At this stage, my responsibility is to assess the degree of risk interacting with each of his parents poses for [X] and put in place orders which are commensurate with the risk in question. In particular, if I am of the view that it would constitute an unacceptable risk, for [X] to interact with one or other of his parents, I should not make an order to that effect.
The Evidence
In addition to the affidavit evidence of Mr Moers and Ms Sands, I have been provided with two other significant pieces of evidence. They are the two dvd records of the interview between [X] and members of the police. I have viewed each of the interviews.
The first interview occurred with Constable W and took place at the [H] Police Station on 1 June 2013. [X] was with Ms Sands at the time. The second interview was between [X] and Detective [name omitted] and took place at the [S] Police Station on 11June 2013. [X] was with Mr Moers at the time.
The interview with Constable W occupies around twenty minutes. There are no other persons visible on the dvd. [X] has available to him a small writing pad on which something is hand written. It is not possible to read the writing from the dvd. [X] consults the pad infrequently during the interview, mostly at the instigation of the police officer.
During the interview, in a matter of fact fashion, [X] complains about having been punched in the back of his head, with a closed fist, by his father, which made him feel scared. He also complains that Ms M has told him that his dad has given her permission to bash [X], which Ms M has indicated is a prospect which she going to enjoy.
[X] also explains that none of the assaults have occurred in the presence of Ms M’s daughter [Y] or out of the front of Mr Moers’ house because a police officer lives over the road from him.
[X] makes these disclosures without apparent distress or emotional affect. The one exception being when he is asked by Constable W why he thinks his father is behaving in this fashion, to which [X] replies “he hates me and my mum”. [X] begins to cry when he says words to the effect of “I thought he actually loves me”.
The second interview is significantly shorter, lasting only around five minutes. Again [X]’s presentation is unexceptional and devoid of any obvious emotional expression. In reference to the earlier [H] interview, he simply states “my mum made me do it”.
The reason given by [X] for the interview being that Ms Sands had said she would cut off his hands. Again, this somewhat florid statement is made without any emotional affect on [X]’s part. In respect of the contents of the interview, [X] indicated “none of it was true” and it was his mum who had jotted the notes to which he had referred and again “none” of these notes were true.
I am not qualified to determine which of these interviews is likely to be the more reliable. To my lay eye, the child’s presentation was broadly similar in each of the interviews. As such, without reference to collateral material, it is impossible to reject either interview as being obviously untrue on its face.
It was, however, deeply disturbing for me to witness the child, in effect, informing upon each of his parents, in turn, to the police. For obvious reasons, it seems unlikely to be the case that each of [X]’s accounts is uninfluenced by some outside force.
After all, in each case, the child has attended at the police station with a parent and both Mr Moers and Ms Sands have ample motivation to harbour grudges against the other. The disputation between them, regarding [X]’s care, is endemic as it has lasted approximately seven years.
It would seem to me to be a reasonable inference for me to conclude that one interview is likely to be more reliable than the other. Although there may be kernels of truth in each, from [X]’s perspective, the dichotomy in content between them seems to indicate that both cannot be true.
Accordingly, the contradictory nature of the two interviews create a dilemma for the court, as the content of each interview gives cause for great concern regarding [X]’s safety in both a physical and a psychological sense. The difficulty arising being that, in its outcome at this stage, the court must give more credence to one account over the other.
In the first interview, discloses having been consistently punched in the head by his father over the period of the past two months. In the second interview, he discloses that he has been coerced into making fallacious complaints about his father by his mother.
If the first account is the more reliable, [X] has been exposed to a serious assault, which fits well within the definitions of family violence and abuse contained in the Family Law Act. On the other hand, if the second account, in which [X] recants his complaints against his father, is reliable, it indicates that Ms Sands has enlisted [X] to concoct allegations against his father to secure advantage over Mr Moers.
Both such scenarios constitute very serious threats to [X]’s wellbeing and safety. A blow to the head has the potential to cause a child serious physical injury. In addition, it represents a most significant failure of a parent’s responsibility to protect and nurture a child from harm.
Such conduct is likely to cause a child to be frightened of the parent concerned and undermine the child’s parental relationships. It also represents unacceptable behaviour on which the child may be liable to model his own behaviour in future, when mature and a parent in his own right.
For obvious reasons, to coerce a child, by the use of threats of physical harm, to make serious allegations against a much loved parent, is likely to have some implications for the psychological wellbeing and functioning of the child compelled to behave in such a way. To use a cliché, it must mess with the child’s mind to be enlisted to denigrate, through lies, a person whom he loves and holds in high regard.
Accordingly, I am gravely concerned at the potential emotional turmoil, which may be engendered for [X], from the process of having to speak to police, about his mum and dad, in the very formal setting of a police station interview, when he knows what he is saying is not truthful and may get one of his parents into trouble.
Accordingly, the case presents no obvious solution at this juncture. If what [X] said to police, in the first interview is true, he is currently living with a person (Mr Moers) who is capable of gratuitously hurting him, whilst being deprived of having any form of meaningful relationship with the person (Ms Sands) who has believed his accounts of violence and has looked out for his safety up to this stage.
On the other hand, if what [X] has said in the second interview and to Mr P is more reliable, Ms Sands has demonstrated that she has few scruples regarding what she would do to gain some form of advantage over Mr Moers in her long struggle with him for possession of [X]. In particular, she would be prepared to do [X] emotional harm to secure her own ends.
At this stage, the court must balance the potential risks arising for [X] of exposure to both such possible adverse parental outcomes. In addition, the court must be aware that there may be detrimental emotional consequences, for [X], of depriving him of the benefits of having a meaningful level of relationship with his mother by unduly curtailing the time he spends with her.
The legal principles applicable
I have set out the applicable legal principles in each of the judgements previously delivered in the case. Over the course of the litigation, there have been some changes to the applicable legislation, particularly in regards to issues relating to abuse and family violence. It is therefore appropriate to reiterate the relevant principles which the court must apply to the case.
In making the interim decision, as at the final stage, the best interests of the child affected by the decision remain the most important consideration. In this matter, although there have several previous hearings, involving the taking of oral evidence, the current proceedings are to be regarded as interim ones.
Accordingly, they have taken place in a shortened form. Due to the urgency of the situation surrounding [X], there has, as yet, not been sufficient time to allocate a final hearing, which will involve the cross examination of each of the parties concerned.
It is through such a process of cross examination that the court makes any necessary assessment of the credibility or truthfulness of the witnesses concerned. In this case, both Mr Moers and Ms Sands assert that the other has been untruthful in their respective accounts of what [X] has said to them about being assaulted by his father.
In addition, each alleges that the other has either influenced or coached [X], in some way, into making a false statement to the police. Obviously, these are extremely serious matters, which are directly relevant to determining the best outcome for [X].
Due to the truncated nature of the interim hearing, I am not in a position to make any definitive finding about the truth or otherwise of these allegations. However, given the urgency of the matter, I must nonetheless make an interim determination of the case, pending any further or deeper hearing of the case.
As the parties are well aware, it is also usual for the court to commission, in cases involving children, a suitably qualified expert to assess the family concerned. Such an assessment is the usual mechanism for the court to determine the wishes or views of any child who is the subject of the relevant proceedings.
In this case, there have been two fairly recent family reports, prepared by Mr P. Mr P’s expert evidence has been subject to some form of scrutiny in the past. However that is not the case in respect of his most recent interaction with [X] at the child inclusive conference of 6 August 2013.
In addition, Mr P has not, as far as I know, examined the two dvd records of interview involving [X]. As such, I do not know if these documents are likely to change his current assessment of what is [X]’s preferred outcome in the case. Importantly, neither Mr P nor any other expert has, as yet, been able to undertake a comprehensive assessment of this family, which axiomatically is currently going through yet another period of crisis.
Indeed, given the number of interviews, in which [X] has recently taken part, it may be emotionally burdensome, at this stage, for him to be interviewed further, no matter how experienced and well-meaning is the expert concerned. Regardless of these issues, it remains the case that the expert evidence, concerning the most recent allegations of abuse surrounding [X], is currently of a provisional nature as it is largely untested.
However, regardless of these difficulties, it is the case that the court has had a significant level of exposure to each of the parties over the period of the litigation between them. This litigation consists of a final hearing which went to judgement (December 2007);[7] other contravention proceedings; and significantly the proceedings which gave rise to the orders of June 2011, to which reference has already been made.
[7] Moers & Sands [2007] FMCAfam 1067
The various matters, which the court must take into account, in deciding how a child’s best interests are to be served, are set out in the Family Law Act at section 60CC.
Section 60CC creates two classes of considerations, which apply to the court’s determination of how a child’s best interests will be determined in proceedings before it. They are designated as primary considerations and additional considerations.
There are two primary considerations, which are set out in section 60CC(2)(a) and (b), namely:
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.
Prior to recent legislative amendments, these considerations were not formally ranked in regards to one another. They have been referred to, in a number of the decisions of the Family Court, as twin pillars, the importance of which depends on the circumstances of the case concerned.
However, as a result of the insertion of section 60CC(2A) into the Act, the court is now directed, in applying the primary considerations, to give greater weight to section 60CC(2)(b), which is the primary consideration relating to the need to protect children from physical or psychological harm, from being subjected to or exposed to family violence.
The two primary considerations are stressed by section 60B(1) of the Act, which sets out the principles of the legislation as it relates to children. They include the following:
“(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.”
Other criteria, relating to how a court is directed to consider how the best interests of any child concerned may be served by any order which the Court makes, are set out in section 60CC(3). These criteria are categorised as additional considerations.
Pursuant to section 60CC(3)(m) the court is empowered to have regard to any other fact or circumstance which it considers relevant. This ensures that the infinite variety of individual children’s circumstances may be addressed in any order which the court makes.
Although the court is directed to consider many factors, in discharging its duties under Part VII of the Act, the best interests of the children concerned remain paramount. The court’s duty is to deliver individual justice, for the child affected, in every case.[8]
[8] See B v B: Family Law Reform Act 1995 (1997) FLC 92-755
In this sense, the court’s inquiry is a “positive one tailored to the best interests of the particular children and not children in general …”[9] As such the various factors, in section 60CC, are inclusive but not exclusive of one another.[10]
[9] See B v B: Family Law Reform Act 1995 (ibid) at 84,220
[10] See Russell & Russell & Anor [2009] FamCA 28 at [141] per Ryan J
The fundamental task for the court is to determine, bearing in mind all the considerations contained in section 60CC and bearing in mind the goals and principles contained in section 60B, what is the best outcome for any child concerned, both now and in the future.
Given the importance, which the applicable legislation places on the co-involvement of parents in their child’s life and development there is a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her [Family Law Act 1975 section 61DA].
The presumption relates to the allocation of parental responsibility, not the allocation of time which a child spends with each of his or her parents.
The presumption of equal shared parental responsibility is rebutted if it is found, on reasonable grounds, that one of the child’s parents has abused the child concerned or exposed him or her to family violence [section 61DA(2)].
The presumption is also rebutted if evidence is provided which satisfies the court that it would not be in the child’s interests for his or her parents to have such equal shared parental responsibility for the child concerned [section 61DA(4)].
The court also has a discretion not to apply the presumption at the interim stage, if circumstances exist which make it inappropriate for it to be applied. This subsection is likely to be pivotal in interim proceedings, particularly in cases where there are untested or unverifiable allegations of child abuse, neglect or family violence [section 61DA(3)].
In the orders of June 2011, the parties ostensibly agreed that Mr Moers would have parental responsibility for making decisions regarding [X]’s health, education and participation in sporting activities. This was because the parties had experienced extreme difficulties in making these types of decision consensually.
In these circumstances, this is not a case which turns on the application of the presumption of equal shared parental responsibility. In addition, given the allegations made by each of the parties, it seems to me to be the case that there are reasonable grounds available to me for me to believe that [X] has been subject to some form of abuse, either physical or psychological.
Accordingly, the case turns on what conclusions – germane to the criteria raised by section 60CC, particularly the primary considerations – are open to me on the basis of the available evidence.
As I have already indicated, pursuant to the provisions of section 60CC(2A), the court is required to give greater weight, in its determination of a child’s best interests, to issues arising under the primary consideration relating to the protection of children from abuse, neglect or family violence. The recent changes to the Family Law Act are significant ones. The key amendments are designed to “prioritise the safety of children in parenting matters”.[11]
[11] See Supplementary Explanatory Memorandum (Senate) Family Law Legislation Amendment (Family Violence and Other Measures) Bill 2011
In the words of the relevant explanatory memorandum “where child safety is a concern, this new provision will provide the court with clear legislative guidance that protecting the child from harm is the priority consideration.” Future protective issues for a child are the court’s priority.
Abuse, in respect of a child, is defined by section 4(1) of the Family Law Act. It means:
“(a) an assault, including a sexual assault, of the child; or
(b) a person (the first person ) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is unequal power in the relationship between the child and the first person; or
(c) causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or
(d) serious neglect of the child.”
In this case, both parties assert that the other has subjected [X] to some form of abuse within the terms of this definition. The mother asserts that the father has subjected [X] to some form of assault; the father asserts that the mother, through threatening [X] has caused him to suffer a serious level of psychological harm.
Cases involving abuse allegations create significant difficulties for the court. These difficulties become more pronounced when very young children are involved. Such children may lack sufficient cognitive facilities to provide a clear and coherent account of what has happened to them.
In addition, regrettably, it is not uncommon for serious allegations of child abuse to be made in vitriolic proceedings between parties who vehemently dislike one another. It is therefore said that the allegations concerned have been fabricated out of malice or to gain tactical advantage. In this context, it is frequently asserted that one parent has manipulated or coached a child to make allegations of abuse.
All these factors are present in the current case. As such, it may be impossible for the court to determine definitively whether [X] has or has not been subject to some form of abuse, particularly at this interim stage and, more importantly, who of his parents has been the perpetrator of such abuse.
However, given the structure of Part VII of the Family Law Act 1975, particularly its emphasis on protecting children from the consequences of abuse, the court cannot disregard such allegations or disregard their seriousness because of evidentiary difficulties which arise in establishing the truth or otherwise of the allegations concerned.
The consequences of a court mistakenly disregarding an allegation of abuse are likely to be serious for the child concerned. The child is likely to feel disregarded and abandoned, particularly if he or she remains in the care of the parent who has subjected the child to abuse.
On the other hand, so is the court giving credence to an erroneous allegation. Such an outcome may be equally detrimental for the child concerned, as it may result in him or her having a healthy and happy relationship with a parent either completely severed or significantly curtailed.
In N & S and the Separate Representative, a case concerned with sexual abuse, Fogarty J said as follows:
“This is where the dilemma arises. Does one take the step of terminating or limiting that relationship where one does not know whether the alleged events took place? And how does one sufficiently account for the fact that because of the nature of the offence any real degree of certainty may be impossible to achieve, and that in any event the ultimate determinant is the welfare of the child?”[12]
[12] See N & S and the Separate Representative (1996) FLC 92-655 at page 82,711
The court must bear in mind that proceedings, in respect of care arrangements for children, pursuant to the Family Law Act, are not strictly a mechanism only to resolve disputes between the parties concerned. Rather their primary focus takes the form of an enquiry into the result which will best serve the interests of any child or children concerned. Nor, it is clear, where there are allegations of child abuse, in the case concerned, are they to be regarded as criminal or quasi criminal proceedings.
In M & M, the High Court formulated a test to be applied by courts in cases involving allegations of sexual and other forms of abuse. It has been referred to as the “unacceptable risk test”. It provides a standard to achieve a balance between the risk of detriment to a child from sexual and other forms of abuse and the possible benefits to be derived by the child involved from parental access. The High Court said as follows:
“To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.”[13]
[13] See M & M (1988) FLC 91-979 at page 77,081
In W and W [Abuse allegations: unacceptable risk][14] the Full Court summarised a number of authorities dealing with abuse allegations, particularly sexual abuse. The Full Court approved the comments of Fogarty J in N & S and the Separate Representative[15]:
“Thus, the essential importance of the unacceptable risk question as I see it is in its direction to judges to give real and substantial consideration to the facts of the case, and to decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm to the child. Thus, the value of the expression is not in a magical provision of an appropriate standard, but in its direction to judges to consider deeply where the facts of the particular case fall, and to explain adequately their findings in this regard.
In asking whether the facts of the case do establish an unacceptable risk the Court will often by required to ask such questions as: What is the nature of the events alleged to have taken place? Who has made the allegations? To whom have the allegations been made? What level of detail do they involve? Over what period of time are the events alleged to have occurred? What are the effects exhibited by the child? What is the basis of the allegations? Are the allegations reasonably based? Are the allegations genuinely believed by the person making them? What expert evidence has been provided? Are there satisfactory explanations for the allegations apart from sexual abuse? What are the likely future effects on the child?
This is not a catalogue of the correct questions, but a reminder that it is questions such as these which are required to be considered in deciding whether an unacceptable risk may be shown. The weight to be attached to the various answers to the relevant questions will inevitably vary from case to case. But it is essential that questions like these be asked.”
[14] W and W [Abuse allegations: unacceptable risk] [2005] FamCA 892
[15] See N & S and the Separate Representative (supra) at page 82,713-82,714
In the case of Goode & Goode,[16] the Full Court of the Family Court has laid out a pathway for the determination of interim hearings such as this one.
[16] Goode & Goode (2006) FLC 93-286
In determining interim parenting matters, after identifying the competing proposals of the parties, the issues in dispute, and any agreed issues, the court should:
·consider the section 60CC matters relevant and, if possible, make any relevant findings of fact;
·decide whether the presumption in section 61DA should be applied or, if it is rebutted because:
Ø there are reasonable grounds to believe abuse or family violence has occurred;
Ø or, in interim proceedings only, if it would not be appropriate to apply the presumption.
·If the presumption is rebutted or found not to apply, then make the orders considered to be in the best interests of the child, again as a result of applying the relevant section 60CC matters;
·If the presumption does apply, decide whether it should be rebutted because it would not be in the child's best interests;
·If the presumption applies, consider first making an order that the children spend equal time with each parent, then second, an order that the child spend substantial and significant time with each parent unless it is contrary to the children's best interests as a result of the consideration of any relevant section 60CC matter, or is impracticable in the terms specified by section 65DAA(5);
·If neither equal time nor substantial and significant time are considered to be in the best interests of the child, then make the orders which are considered to be in the best interests of the child when considering applicable matters in section 60CC.
·Even in this latter situation, it is open to the court to make an order for equal time or substantial and significant time if the court considers it to be in the best interests of the child concerned.
As indicated above, the father’s position is that [X] should now have a prolonged moratorium from spending time with his mother. It is his case that such an outcome is in accordance with the child’s wishes and will ensure that he is protected from coming to any form of emotional abuse emanating from his mother.
The mother’s position is less easy to glean, as she has been acting on her own behalf in these proceedings. Initially when she withheld [X] from his father, in June of this year, it was her position that the child should spend no time whatsoever with Mr Moers, in order to protect him from being further assaulted by him.
I understand that failing such an outcome, Ms Sands would want to spend as much time as possible with [X]. She has not filed a formal response to the father’s application. It is her case that she has a “wonderful relationship” with [X] and they have engaged in many activities together in the past. She asserts that the father has made his evidence to “please the courts”.
The independent children’s lawyer’s position is that the court should consider a period of supervised time between [X] and his mother. She is not in favour of an immediate return to the previous status quo or there being any change in [X]’s place of residence.
It is implicit in her submission that she does not give significant credence to the complaints made by [X], in the [H] record of interview, but she is concerned at the consequence, for [X], of there being a continuing and extended severance of his relationship with his mother.
In addition, she does not dismiss the possibility that Ms Sands has exposed [X] to some form of emotional abuse by attempting to influence him against his father. The rationale of the time between [X] and his mother being supervised is to provide [X] with some significant level of protection from such behaviour.
There are no important issues agreed between the parties. In fact the parties disagree about all issues of substance. Although I concede that I have determined the issue out of the sequence stipulated by the Full Court, it is the case that the presumption of equal shared parental responsibility is not to be applied at this stage.
The task therefore arising for the court is to determine the best arrangements for [X]’s care, at this stage, by reference to the applicable factors arising under section 60CC, bearing in mind, the primacy to be given to protective concerns.
Fundamentally, this involves assessing the risks for [X] of the various outcomes proposed by the parties concerned. One of the very real risks arising in the case is the potential to deprive [X] of having a meaningful level of relationship with his mother.
Consideration of section 60CC factors and conclusions
In this case, both parties assert that the other has exposed [X] to abuse. In the mother’s case, she asserts that Mr Moers has repeatedly punched [X]. In the father’s case, he asserts that Ms Sands has threatened to assault [X], if he does not inform on him to police.
Ms Sands’ allegations are not supported by any independent corroborative evidence. The only evidence available to support these claims is in [X]’s first interview with police, which he has subsequently recanted, particularly in his interview with Mr P.
If what [X] has said to Mr P about his mother is true, I regard it as abuse of a serious nature. Through a process of coercion, involving significant threats of violence, [X] was forced to accuse his father of being a violent and insensitive person.
If this description does not accord with [X]’s own experience of his father, this process is likely to have caused him some level of emotional turmoil. [X] is likely to have felt disloyal to his father and frightened of his mother. In addition, it is not helpful, so far as his moral development is concerned, that he was compelled to lie to a person in authority, in the form of the police officer concerned.
As I am at pains to point out, to the parties concerned, I am not in a position to resolve the truth or otherwise of [X]’s various statements at this juncture. Rather, I must assess the degree of risk arising for [X] in all the circumstances of the case.
The gravamen of Mr Moers’ concern is that the mother has enlisted [X] against him, in her apparently unending struggle for advantage in their post-separation politics. These issues derive from the parties and are not [X]’s direct concern.
On the basis of the extensive evidence available to me, I do not believe that I am in a position to dismiss Mr Moers concerns. I am of the view that there is more weight of evidence to indicate that Ms Sands has sought to manipulate [X] than is indicative that Mr Moers has assaulted the child.
In these circumstances, I consider that for [X] to interact with his mother, in any significant way, poses a serious level of emotional threat to [X]. This must follow from the circumstances of the three interviews involved in this matter, which have ended with [X] making significant complaints about his mother to Mr P.
Given this situation, I am concerned that there is a significant risk that Ms Sands will want to influence [X] or, at the very least, given what he has said to Mr P, [X] will regard the prospect of any form of interaction with his mother with a significant degree of trepidation.
Regardless of where right and wrong ultimately falls in this matter, I am also gravely concerned that [X] has been subjected to three significant interviews, concerning his parents, in a period of around six weeks. In my view, it is likely to be helpful to [X] that he is given a period to rest and recuperate, particularly in order to enable him to regain his emotional equilibrium.
The earlier evidence from Ms D, the principal of [S]’s, was that [X] is an emotionally vulnerable child. In these circumstances, in my view, whatever is the next step taken, it is one which must be considered with extreme care.
Clearly, [X] knows each of his parents very well indeed. The legislation requires the court to consider the benefits a child is likely to derive from having a meaningful level of relationship with a parent. A parental relationship is not likely to be meaningful, in the sense envisaged by the legislation, if the child concerned is fearful or anxious at the prospect of interacting with the parent concerned.
It is the mother’s position that [X] is frightened of his father. In the past, she has also alleged that [X] is frightened of his paternal grandmother. It is because of these allegations that, on two separate occasions, I have directed that a family consultant oversee the exchange of [X] between his paternal grandmother and father respectively.
In each case, the report prepared by the family consultant concerned indicates that [X] has a comfortable relationship with both his paternal grandmother and father. In particular, on 7 June 2013, Family Consultant Ms K noted that [X] immediately rushed to his father and gave him a hug. This is not the action of a traumatised child.
In these circumstances, I accept that [X] benefits from having an extensive relationship with his father. This was the underpinning of the interim decision, made in January 2011, which led to the consent orders of June that year. At that stage, I also found, on the basis of the evidence available to me from [X]’s school and Mr P that the father was better placed to provide for [X]’s educational and emotional needs.
Up until January of 2011, [X] lived predominantly with his mother. This situation came about following the parties’ separation, which occurred in early 2007. Thereafter, Mr Moers elected to work on a fly in/fly out basis to a [omitted] site in Western Australia. As such, he was away from Adelaide and [X] frequently.
More recently, due to his concerns about [X]’s welfare, Mr Moers decided to give up his interstate work and obtained employment in Adelaide. Prior to him adopting this course, the status of his employment was a significant source of grievance for Ms Sands, who felt Mr Moers was not shouldering his full share of responsibility to parent [X].
Notwithstanding his concerns about Ms Sands’ capacity to parent [X], in the 2010/2011 proceedings, Mr Moers conceded that [X] should continue to spend extensive periods of time with his mother, particularly on alternate weekends and during school holidays.
Accordingly, there can be no doubt that [X] knows his mother very well indeed. She has been his main provider of care for the larger proportion of his life to date. Ms Sands has given evidence of the enjoyable activities she and [X] have undertaken together.
In these circumstances, I concede that it is a significant thing to either severely restrict [X]’s time with his mother or curtail that time altogether. Such a course should be adopted only in exceptional circumstances. In my view, this case provides such exceptional circumstances, certainly at the interim stage.
I reach this position because of the views expressed by [X] to Mr P, which are, to say the least, disturbing. If his words to Mr P properly reflect [X]’s views, he does not want to see his mother until he is eighteen years of age.
The applicable legislation requires me to consider any views expressed by the children concerned and any factors which may affect the weight to be given to those views, such as the children’s maturity or level of understanding. The legislation speaks of views rather than wishes. The latter is a more concrete concept; the former is more addressed to perceptions and feelings.[17]
[17] See Explanatory Memorandum to the Family Law Amendment (Shared Parental Responsibility) Bill 2006 at paragraph 56
Accordingly, a child is not required to make a decision about what is the appropriate outcome for him or her in any particular case. Nor is he or she required to express an explicit wish as to which parent or other significant person he or she wants to live with or spend time with.
However, it seems that the court is required to explore a child’s perception of what he or she feels is likely to be best for him or her. Very often these perceptions will be ambivalent and difficult to express or quantify. This is particularly so with younger children. This does not mean that a child’s view should be disregarded.
To the contrary, over time, there has been an increase in the judicial regard given to the rights of children in proceedings such as these. It is often said that children have a right to be heard. Certainly children’s views are important and requiring of being given “proper and realistic weight” rather than token regard.[18]
[18] See H v W (1995) FLC 92-598 at 81,944
At the time of his interview with Mr P, [X] was 11 ½ years of age.
Mr P regarded him as confident and assured in his demeanour. More significantly, Mr P regarded [X] as being insightful about his situation and the dilemmas it has created for him.
The reality of [X]’s life for the past six years is that it is has been marked by extreme levels of conflict between his parents and almost unceasing litigation. In the course of this litigation, he has been interviewed by Mr P and seen by other family consultants.
In all these circumstances, it would be extraordinary if [X] did not have some deep level of understanding of his situation and the conflict which surrounds it. It is readily understandable that he would want the conflict to stop. From his perspective, the only means to quarantine himself from this conflict is to cease contact with one of his parents.
Mr P has met with [X] on at least three occasions. He is an experienced family consultant, who is aware of the overall dynamic of [X]’s family. In my view, he is likely to be a reliable conduit of [X]’s views in the matter. Certainly, without intending any disrespect, he is better placed in this regard than the two police officers concerned.
In his memorandum to the court, Mr P indicated that [X] reiterated his view that he did not want to see his mother consistently throughout his interview with him and was adamant in his view. In my assessment, this is significant. The court’s responsibility is to give proper and realistic weight to [X]’s views.
There is nothing ambivalent about this view and given his idiosyncratic circumstances, I can readily understand why [X] has reached it. To
Mr P, [X] presented as a child at the end of his emotional tether. Again, this is congruent with my own impression of his situation, particularly gathered over the course of the proceedings which gave rise to the June 2011 orders.
It is also significant that [X] reported a happy and well-functioning life, whilst living with Mr Moers and Ms M, to Mr P. There is no indication, in Mr P’s memorandum to the court, that [X] has been the subject of manipulation or coaching, whilst in his father’s household.
I am concerned that [X] may feel unheard or disregarded, if his views, as expressed to Mr P, are apparently disregarded by the court. I also consider that [X] needs some respite from the conflict between his parents. He has had such a respite for a period slightly in excess of three months.
However, at this interim stage, it would be improper for the court to sever permanently [X]’s relationship with his mother, which must be considered a significant relationship for the child, although apparently not a relationship without its particular challenges for him.
[X] is also entitled to feel safe in his interactions with his mother. This, I think, must entail some form of professional supervision, if there is to be any time between [X] and his mother in the short to medium term.
I have come to the conclusion that the suspension of time between [X] and Ms Sands should continue until 1 December 2013, which will give [X] an hiatus of approximately six months. Thereafter there should be a series of six supervised visits at a children’s contact centre, with the visits occurring on a fortnightly basis. The most appropriate centre, for the parties, appears to be the [C] Children's Contact Centre. A report should be prepared after these visits.
This will necessitate an adjournment of the proceedings until the end of March 2014. The parties can consider their positions at the end of this process, particularly whether there should be a further hearing in the case, which necessitates the preparation of a further family report.
For all these reasons, the orders of the Court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding one hundred and sixty-eight (168) paragraphs are a true copy of the reasons for judgment of Judge Brown
Associate:
Date: 19 September 2013
0
6
0