SHACKLEWORTH & KENNY

[2013] FCCA 579

FEDERAL CIRCUIT COURT OF AUSTRALIA

SHACKLEWORTH & KENNY [2013] FCCA 579

Catchwords:
FAMILY LAW – Entrenched parenting dispute – mother believing children sexually abused and assaulted by step-mother’s children – numerous reports to DHS and police – no abuse substantiated – mother’s serious psychiatric difficulties arising from belief in abuse having occurred – whether mother needs, and is amendable, to treatment – mother to be given opportunity to engage with psychiatric treatment – review in approximately one year. 

Legislation: 
Family Law Act 1975 (Cth), ss.4AB(1), 60CC, 60CC(2), 60CC(3)(a), 60CC(3)(b), 60CC(3)(c), 60CC(3)(d), 60CC(3)(e), 60CC(3)(f), 60CC(3)(g), 60CC(3)(i), 60CC(3)(j), 60CC(3)(l), 60CC(3)(ca), 61DA(1), 61DA(2), 61DA(4)

Goode v Goode [2006] FamCA 1346

Applicant: MR SHACKLEWORTH

Respondent: MS KENNY

File Number: MLC 2497 of 2007

Judgment of: Judge Burchardt

Hearing dates: 30 January, 12, 13, 18 & 19 March 2013

Date of Last Submission: 30 April 2013

Delivered at: Melbourne

Delivered on: 9 July 2013

REPRESENTATION

Counsel for the Applicant: Mr Skerlj

Solicitors for the Applicant: M K Steele & Giammario

Counsel for the Respondent: Mr Leeton

Solicitors for the Respondent: Lampe Family Lawyers

Counsel for the Independent Children’s Lawyer: Ms Colla

Solicitors for the Independent Children’s Lawyer: McKean Park Lawyers

IT IS NOTED that publication of this judgment under the pseudonym Shackleworth & Kenny is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT MELBOURNE

MLC 2497 of 2007

MR SHACKLEWORTH

Applicant

And

MS KENNY

Respondent

REASONS FOR JUDGMENT

Introductory

1. This terribly sad case is about which parent should be the primary carer of three young children, X born (omitted) 2003, Y born

   
   

   (omitted) 2005 and Z born (omitted) 2007. 

2. The applicant father seeks that the children live primarily with him, and the mother seeks that the children remain primarily with her.  The Independent Children’s Lawyer supports the children remaining with the mother for the moment, but requests that the matter be re-evaluated in a year’s time. 

3. The parties’ different positions arise in the main from the mother’s obsessively held, and erroneous, view that X, and to a lesser extent, Y, have been sexually abused whilst in the care of the father.  The sexual abuse is said to have been perpetrated by the father’s stepson, B, aged 15. 

4. For the reasons that follow, while I make it clear that I have formed a positive view that B has not sexually abused either X or Y, I think that the children should remain with their mother at least for the moment, and that the orders sought by the Independent Children’s Lawyer should be made. 

5. I should make it clear that I have had regard to all the substantial tranches of material filed by the parties since the father’s Initiating Application of 24 February 2012.  Nonetheless, in order to keep this judgment within anything like a sensible scope in terms of size, I will refer to those matters that strike me as being of primary significance.

Some matters not the subject of disagreement

1. It is a fact that the parents were involved in Court proceedings between 2007 and 2008.  An Independent Children’s Lawyer was appointed.  The matter was the subject of consent orders made in the Family Court of Australia on 16 July 2008.  Joint parental responsibility was ordered and the children were to live predominantly with their mother. 

2. It is interesting to note that in the family report dated 8 July 2008,

   
   

   Mr E observed at page 4 that the mother presented as “an intense and on occasions an anxious and emotional person who was distressed about certain issues relating to the children and Mr Shackleworth’s behaviour towards her.” 

3. Mr E noted that Ms Kenny continually emphasised alleged violence on the part of Mr Shackleworth towards her.  In his summary, at page 5, Mr E noted, “The parental relationship between Mr Shackleworth and Ms Kenny is complex and fraught with a range of difficulties.”  

4. The applicant father was born on (omitted) 1974, and the respondent mother was born on (omitted) 1976.  They married on (omitted) 2001 and separated on 30 January 2007.  They divorced on 7 July 2008. 

5. Although each blames the other, it is clear from the materials taken as a whole that the relationship was a turbulent one and, at the very least, was characterised by allegations of family violence on the part of

   
   

   Ms Kenny against Mr Shackleworth. 

6. Following separation, Ms Kenny re-partnered with Mr M, by whom she had a further child, A, born (omitted) 2009.  The mother has no contact presently with the father, Mr M. 

7. Although it seems reasonable to infer that the parties did not communicate well (there was evidence that all communication was by the communication book), the orders appear to have proceeded relatively uneventfully until 2012. 

8. This was so notwithstanding that in October 2010 the mother advised Mr Shackleworth by telephone that the children had disclosed to her that B (at that time aged 12) had touched and squeezed the boys’ penises while he was present.  This led to significant investigation both by the Department of Human Services (“DHS”) and the Police SOCIT Unit.  The police decided to close investigation and take no further action in the ultimate, and neither did the Department of Human Services. 

9. These matters should be taken in context of an assertion made in paragraph 10 of Ms Kenny’s affidavit sworn 21 May 2007 in which she alleged that the father had behaved inappropriately in the bath with the child Y as long ago as 2006. 

10. As previously mentioned, the father has re-partnered with his partner, Ms E.  She has three children, a daughter C born (omitted) 1995, B born (omitted) 1997 and D born (omitted) 2000.  Ms E has been in a de facto relationship with Mr Shackleworth since about April 2009 and as I understand it, they are engaged to be married. 

The events of early 2012

1. The father’s Initiating Application filed 24 February 2012 sought that the children live with him, or at least spend make up time with him.  He also sought that the mother be required to attend upon Dr E, psychiatrist, for a psychiatric report. 

2. The Affidavit in Support relevantly deposed that the last time he had seen the children was between 12 and 29 January 2012.  According to his affidavit, they were then due to see him again in February.  When they did not do so, the father tried to find the mother but she had vanished.  At paragraph 20 of his affidavit filed 24 February 2012, the father deposed:

   “The police contacted me later that afternoon indicating that the respondent mother had been intercepted in her motor vehicle on the (omitted) Highway in northern Victoria and that the police had spoken with her and she and the children and A appeared to be in reasonable health.  Constable B advised me that his information was that the mother had indicated that she was on a short holiday.  He said police that attended reminded her that the children should be at school and that she should keep her mobile phone on.”

3. When contact was eventually made by the father with the mother, she said that he would not be seeing the children for quite a while as sexual abuse had taken place of X. 

4. From the materials as they now stand, and in particular the family report of Dr M dated 3 January 2013, it is apparent that (in paragraph 35):

   “The Mother stated that in January 2012 X again disclosed again that B had touched his penis.  The Mother stated that she was so distressed by the allegations that she took the children away to N.S.W.  The Mother expressed concerns about X’s welfare particularly given the seriousness of his illness.  She stated that since her return she had sought counselling for the children through the Northern Centre Against Sexual Assault and had been told by the counsellor that “sexual assault is a trauma for the parents and that it had triggered the trauma of violence in the relationship with Mr Shackleworth”.” 

5. It is clear, on any view, that whatever X said to his mother in January 2012 precipitated a major emotional and psychiatric crisis on the part of the mother.  The two issues that stand at the core of this case are the mother’s belief that sexual abuse has occurred, (and the interrelated matter as to whether she is correct or not), and the state of the mother’s mental health. 

The father’s position

1. The father’s position is that the three children should relocate and live primarily with him, Ms E and their three children.  As counsel put it in opening, this would be disruptive, but he and Ms E would be able to cope.  Counsel put it that they were prepared for it. 

2. The mother’s position is that the extant orders should remain in place, but she does now accept that she should access psychiatric treatment, although she wants final orders to be made. 

3. The Independent Children’s Lawyer’s position, as already indicated, is somewhere between the two.  The Independent Children’s Lawyer seeks interim orders so that the mother’s capacity to cope properly with the sequelae of her psychiatric assessment can be evaluated. 

The evidence given in the Court

1. The applicant father, Mr Shackleworth, was called first.  He confirmed an awareness of X’s significant ill health and the fact that X was due to have surgery shortly.  He said that he was not involved in periodic check-ups for X because of the stress that his presence caused X. 

2. Mr Shackleworth conceded that the mother does a good job looking after the children in a general way, although he maintained that she was inadequate in looking after their emotional needs.  He confirmed that the children were doing very well at school, although Y has some problems of delay in speech.  He confirmed that the mother’s involvement with the school was helpful to the children and that Z was progressing very well. 

3. Mr Shackleworth confirmed his relationship with Ms E of some five years.  He said that her relationship with his children was entirely good for them.  He said there was simply no issue between the six children together, and that things had worked out even better than he expected.  He said he kept a close eye on the children and that they miss each other when apart.  He had never seen the children crying. 

4. He said that he always watches the children like a hawk because of the allegations made against him in the past.  He said that if they were distressed he would notice.  He said that if he was to be absent for any reason, either Ms E or C would be present.  He said that X is lying and that he needs to lie.  He said that X has in fact denied the 2010 allegations to him.  He said that if the children were with him, they would go to (omitted) School.  He would support their extracurricular activities. 

5. Mr Shackleworth asserted that there was enough room for the six children (an assertion I accept), and that the half acre property in which they lived was the subject of a secure rental with a landlord with whom they had a good relationship. 

6. The father said that the mother had been the primary carer of the children in the past and that the children would miss her, and that they might need professional assistance to get used to living with him. 

7. In cross-examination by the counsel for the Independent Children’s Lawyer, the father confirmed that Ms E’s children were with each of their parents on a week about arrangement.  He confirmed the substantial distance between where he lives and where the mother lives.  He confirmed that he has considered his budget and he and

   
   

   Ms E could afford to have the three children living with them. 

8. Ms E was called.  Under cross-examination by counsel for Ms Kenny, she asserted that there had never been any resonance in the household that anything bad had happened with any of the children.  She said she was not allowed to go to Y’s school because the mother did not want her there.  She confirmed that if the children were in her care, she would look after X and Y’s medical needs.

9. Under cross-examination by counsel for the Independent Children’s Lawyer, Ms E said the children got along well.  She said the disruption of change would affect both X and Y, and she conceded that it would be difficult for X to change households to start off with. 

10. The mother was called and adopted her affidavits.  Tellingly, she confirmed in cross-examination that she still believes that the abuse asserted to have occurred, particularly in 2010 and 2012, occurred.  She tended to make light of her allegation in 2007.  While I agree that is what she did, it should be noted that that is now a long time ago. 

11. Ms Kenny confirmed that she was unhappy with the outcome of police and DHS investigations into the assertions of abuse.  It should be noted, however, that some of her assertions, when looked at objectively, might be thought slightly strange.  This is a matter to which I will return. 

12. The mother said that the father was lying in his denials of abuse.  She did not accept that she was unwell.  She did however say that while she had not wished to see Dr E, she found him lovely.  She confirmed that Y had been assessed through CAMS, and is understood to have PDD with autistic traits.  She said that Dr D has helped her.  In my view, she was somewhat evasive about the assertions in paragraph 37 of Dr M’s family report. 

13. Ms Kenny said she had seen Dr D on 18 February 2013 and

    
    

    4 March 2013, and understood she did not require further treatment. 

14. She said that her behaviour in 2012 had not been good but was her way of protecting the children.  She agreed that continual investigations by the police into the children might be abusive of them.  She confirmed that she was seeking that any time spent by B with her children be supervised, and asserted that this followed DHS advice. 

15. She conceded that X had overheard her talking about the father

    
    

    (a matter referred to in paragraph 40 of Dr M’s family report). 

16. In the ultimate, she agreed that the children should not be counselled further about sexual abuse issues. 

17. Under cross-examination by the Independent Children’s Lawyer, the mother confirmed that the children were doing well at school.  She confirmed that she has been seeing a counsellor called Ms P, whom she first saw in 2010 and whom she last saw in March 2012.  She said she would have no difficulty in seeing a psychologist or psychiatrist. 

18. She confirmed that when she decamped to New South Wales in January 2012, she and the children had slept in the car one night and that Y missed a specialist appointment during this sojourn.   She conceded that she was very stressed at the time and that the children had seen this. 

19. She accepted that there should be no more reports to DHS (there have been very numerous such reports), and no more counselling. 

20. She expressed no faith in C as a supervisor because she did not know her. 

21. She confirmed that X was to have bypass surgery and that the best possible prognosis was at least two weeks in hospital.  She confirmed the support and ready availability of her parents, siblings and other family members.  She confirmed that she did not get along well with the father and emphasised the acrimony that had occurred when

    
    

    Mr Shackleworth, unfortunately, supported Mr M in her dispute with Mr M.  

22. She confirmed that Ms E would be welcome should she come to the school. 

Some comments about the evidence of the parties

1. The father was a good witness.  He was evidently sincere.  His answers were direct and responsive. 

2. Nonetheless, and for reasons which I make clear later, I do not think that, despite his denials, he has fully been able to think through the magnitude of the consequences of the orders that he seeks.  He clearly loves his children dearly.  

3. Ms E was likewise a convincing and thoroughly decent witness.  She was again straightforward, responsive and direct in her answers.  Her evidence of the lack of disharmony between the children was, in my view, convincing. 

4. The mother’s evidence was likewise given with conviction.  This, however, is more problematic given the nature of her beliefs.  The transcript will not reveal the pressure of speech that was evident in the way she gave her answers. 

Conclusion about the sexual abuse allegations

1. I took the unusual step at the end of the proceeding of telling

   
   

   Mr Shackleworth and Ms E to their face that I did not accept that any sexual abuse had taken place in their presence.  I accept the father’s denials in their entirety. 

2. It is true that there have been allegations from time to time that

   
   

   Ms E’s two younger children may bully, or on occasions assault,

   
   

   Mr Shackleworth's children, but in my view these are no more than the rough and tumble of everyday interaction between exuberant young boys. 

3. It needs to be noted that some of the mother’s assertions about the sexual misconduct are of themselves inherently improbable. 

4. The mother’s statement to the police made on 24 October 2010 is attachment 11 to her affidavit filed on 2 April 2012.  In paragraph 11, it asserted, on the part of X, that abuse has not just taken place on the couch at his father’s home, but outside on the trampoline.  It is also asserted in the same paragraph that B had touched Z when he was in the bath on his penis.  This was asserted to have been in the presence of the father, B, X and Y. 

5. In paragraph 12, Y is recorded as being assaulted in the bath by B in the presence of X, Z and B. 

6. In paragraph 13, X is asserted to repeat that he has been touched on the penis when in the bath, while his father, Y, Z and B were present. 

7. Leaving aside for these purposes the fact that the revelations made, as recorded by the mother, seem to owe much, according to the way the matter is recorded, to the mother’s leading questions, and no doubt her heightened agitation at the time, what is particularly important to me is the assertion that the father was present. 

8. Having seen and heard the father give his evidence, as I have already indicated, I have no doubt that the allegations that involve him directly are untrue. 

9. Furthermore, substantial investigation by the police and all too numerous reports to the DHS have not in any way substantiated the mother’s assertions. 

10. It is unfortunate that the mother has seen assertions that the allegations are not made out by the police and DHS as buttressing her position that it has not been proved that abuse did not take place. 

11. The evidence of Mr Shackleworth and Ms E is to the general effect that they have never noticed anything in their household that would suggest any of the children are significantly distressed.  I accept that evidence which was given with conviction.  It is of course true that the mother says that the father is lying (and by inference, Ms E also), and it is conceivable that is so.  But it is the job of the Court to make judgments, and I have no doubt as to where the truth lies. 

12. Accepting as I do that nothing has ever been observed between the children that is untoward by either of these parents, both of whom would clearly be hyper-vigilant given the past allegations made respectively against the father and of course, against Ms E’s own child, B, it is far more conformable with common sense that abuse has not occurred. 

13. Taking all the material as a whole, I am prepared to, and indeed as I see it bound to, find that B has not abused the other children, and that no sexual abuse of the children has taken place. 

14. It is of course true that the children have continued to make allegations of abuse.  X did so when he saw Dr M for the preparation of the family report dated 3 January 2013. 

15. Y told Dr M that D and B hurt the other children and punch them in the neck.  He did, however, deny being hurt in any other way. 

16. Noteworthily, in respect of Z, Dr M recorded (paragraph 49)

    “… He did share that “mummy feels sad when I go to dads”.  He added that his Father feels happy when the children go to his house.  Z later stated that his Mother asks him questions after being at his Father’s house.  Z also discussed his attendance at the Police Station.  When asked what he told them he said “we had to say words.  I forgot what we had to say.”

1. These ongoing recitations of abuse reflect the mother’s entrenched position.  It is clear she will always continue, unless assisted by treatment, to believe them.  

2. Nonetheless, while it is impossible to say exactly what has given rise to these assertions of abuse, it is possible to say, as I have done, that it has not occurred.  It is important for everyone, and most particularly for the children, that this aspect of the controversy be determined.  I hope that this unequivocal finding will achieve that outcome.

The professional witnesses

Dr D

1. Dr D appeared under subpoena.  She confirmed that she had seen the mother twice in 2013 and that in her view that was sufficient.  She confirmed that she had told Ms Kenny that she did not need to see her further if she did not wish to do so.  She confirmed under cross-examination by counsel for the Independent Children’s Lawyer that medication would assist Ms Kenny but that she was resistant.

2. Under cross-examination by counsel for Mr Shackleworth, Dr D confirmed that the mother was not now depressed but that she suffered from an adjustment disorder with anxiety.  Dr D confirmed that the mother would still benefit from further psychiatric assistance but should not be forced to undertake it.

Dr E

1. Dr E likewise appeared by telephone under subpoena.  He did not agree with Dr D’s proposition that counselling alone would be enough for the mother on an ongoing basis.  He confirmed that it was his opinion, having seen Ms Kenny, that she was extremely unwell and that she had been unstable, as evidenced by the fact that she ran off with the children.  He confirmed that the mother’s suicide attempt when she was 19 years old had more to it than had been revealed to him, and that this was an issue that still required to be worked through. 

2. He has said that given the mother’s anxiety about her children in the other household, a change of residence would be extremely difficult.  He said that he would wish to see the mother again.  Under cross-examination by counsel for the father, he confirmed that the mother’s condition still has not been properly treated and that he did not agree with Dr D in this regard. 

3. He volunteered the identity of a potential further treating practitioner. 

Ms P

1. Ms P gave evidence, again on subpoena.  She is a generalist counsellor.  It emerged under cross-examination by counsel for the Independent Children’s Lawyer, that Ms P had not seen it as being her task to raise the sexual abuse allegations with the children but when they were made, she counselled the mother to refer them to the appropriate authorities.  She confirmed that she was assisting the mother with techniques to manage her anxiety. 

2. Under cross-examination for counsel for the father, it emerged that

   
   

   Ms P is not a clinical psychologist and has not trained as a psychologist.  She confirmed however, that she did not necessarily agree with the views of Dr E. 

3. Under cross-examination by counsel for the mother, Ms P confirmed that the mother’s anxiety and general difficulties had lessened now that she was no longer self-represented in these proceedings. 

Dr M

1. In evidence-in-chief, Dr M confirmed that she had not evaluated the parties in terms of a change of residence application, but rather in relation to spend time issues. 

2. Under cross-examination by counsel for the Independent Children’s Lawyer, she confirmed that she had seen the parties towards the end of December 2012 but had not met Ms E or her children. 

3. She was of the opinion that the father had fully thought through his proposal for residence, and she confirmed that she thought there would be a review at some point in the future before final orders were made. 

4. She thought this might occur in four to six months, but should be determined by the psychiatrist that the mother was to see.  The purpose of the treatment would be to look at whether the mother can change.  It would require therapeutic treatment. 

5. Dr M was of the view that the mother’s condition was one of overriding anxiety and that the sexual abuse allegations were a symptom of this.  She had put a suggestion to the mother that she seeks psychiatric assistance, but the mother had dismissed it.  Denial was part of the issue, and the mother needed however, the chance to improve. 

6. Dr M expressed the view that Dr E is a particularly expert psychiatrist in this area.  She had found the mother a little agitated and distracted in thought and it was hard for her to focus on the topic of conversation.  The mother impressed as being not receptive to other options.  

7. Dr M was clear that the children saw the mother as their primary carer and that there were no concerns about the children’s physical care while with her. 

8. She confirmed that any change of residence would be extremely stressful for the mother, and that X in particular might have a burden of concern for her.  Further, X is also very reliant upon his mother for medical care.

9. Dr M repeated the concern expressed in her written report that she has concern over a number of factors about the children in the mother’s care.  She noted that the children were questioned after spending time with their father and exposed to her anxiety.  They are not allowed to show affection for their father in front of the mother.  The stress on X in particular is a very bad thing. 

10. Under cross-examination by counsel for the father, Dr M noted that whether X developed a responsibility for his mother would depend upon the mother herself.  The mother had been dismissive of Dr E’s report.  Dr D was plainly taking a different decision to that of Dr E.  She confirmed that the DHS report dated 1 May 2013 reinforces the need for the mother to have intervention, and that the children will need counselling whatever orders the Court makes. 

11. Under cross-examination by counsel for the mother, Dr M confirmed that change could be seriously adverse for X.  She confirmed that the outcome of Y’s therapy would depend to an extent on how well the father engages.  She did not think that X’s revelations were reliable.  She confirmed that this view was based on the fact that the police investigation had produced no concerns.  She said that X seemed burdened, and it was hard to say whether what he was saying was true or not. 

12. These last remarks, of course, should be assessed in the context of the findings I have already made. 

The DHS report

1. I have not dealt in any way with the very considerable number of reports made by the mother to DHS over time.  She was extensively cross-examined by counsel for the father about these matters, and it is sufficient to record that the all too numerous referrals that the mother has made are clearly entirely consistent with her over anxious view of the children in the father’s care. 

2. The most recent report from DHS forwarded to the Court is dated

   
   

   1 May 2013.  Given the nature of this case, it is appropriate to set out the entirety of that correspondence:

   “I am contacting the court to advise on outcome of Child Protection Investigation into concerns reported for X, Z and Y.  Child Protection intend to end our involvement with the family and at this stage will not be making further referrals for support.  This is based on the mother, Ms Kenny already being engaged with a counsellor and that the children are already linked to support and monitoring of their school.  In addition there have been no additional parenting support needs identified as Ms Kenny presents as being organised and consistent in her response to meeting her children’s individual needs, including the significant health needs for X.

   Consideration has been given to substantiating concerns of emotional harm having occurred due to the previous incident of the mother’s poor mental health in 2012 and the concerns about the impact of concerns about sexual abuse having occurred on the children’s wellbeing.   None the less concerns have not been substantiated at this time.  The concern’s that X has experienced sexually abusive behaviour perpetrated by his step brother can not be disproved any more than it can at this time be proven to have occurred.  I further note that Child Protection has previously closed reports in respect to the children due to assessment that Ms Kenny is protective due to her reporting the sexual abuse matters to SOCIT and has prevented contact between the children and their step brother.  As such these responses have given mixed messages to Ms Kenny and reinforced her actions.  I have been clear with Ms Kenny that there would need to be significant new information and evidence of abuse to have occurred for consideration of investigation of such allegations by Child Protection and associated interview of X or his brothers.

   Given the stress of believing her children when they have disclosed incidents of a sexually abusive nature it is not surprising that Ms Kenny has experienced situational responses of poor mental health and associated concerning presentation.

   In respect of managing these responses for the future Ms Kenny has identified that she remains engaged with a counsellor and is able to be referred to a Psychiatrist again should her presentation deteriorate.  Further, the children’s school have also now recognised that especially in respect to the events of February 2012, if Ms Kenny’s mental wellbeing should deteriorate and she is requiring additional support.  The school is able to identify and report accordingly.

   Further, Ms Kenny has identified the weekly contact with her counsellor as being an appropriate place to be able to work through her feelings and concerns about the children and so not expose her children to her concerns but rather work through her feelings and responses in an appropriate therapeutic environment.  This level of insight has historically been absent.  It is therefore assessed that progress and increase in protective capacity has been made.

   Child Protection will be completing closure of notification by 3rd May 2013 and the parents will have this confirmed in writing.  Discussion will occur with the school to ensure that appropriate support and monitoring continue and request that a notification be made to Child Protection should they have concerns about any changes in the children’s or mother’s presentation that would suggest risk of significant harm.”

Findings about the mother’s views and her capacity to change

1. Having heard all the experts give their evidence, it is quite clear to me that Dr E and Dr M are to be preferred to the evidence given by Dr D and Ms P.  Not only did Dr M, who is herself a very experienced report writer and counsellor, assert that Dr E is an extremely experienced man in this field, I found Dr E’s answers extremely cogent and believable.  He says that the mother has never been properly treated and it seems clear to me that is so.  It is at least good news that the mother even at this late stage has accepted the purport of that finding.  She has undertaken to engage with a psychiatrist nominated by Dr E. 

2. While not in any sense being critical of Dr D’s truthfulness, or in any way questioning her expertise, she has seen the mother only twice.  Having seen the mother myself, and not doing more than noting the pressure of speech to which I have referred, it seems to me that her behaviour is far more conformable with the views of Dr M and

   
   

   Dr E which are that the mother needs desperately to come to grips with the fact that while she fervently believes it, she must accept that abuse has not occurred, and more importantly, will not occur in the future while the children are in the father’s care. 

3. Ms P, while undoubtedly well-meaning, and while undoubtedly of assistance to the mother from day to day, is simply not sufficiently qualified to put in issue the views of Dr E, which I note she purported to do. 

4. In summary, the mother continues to be unwell, and it is entirely necessary in the interests of the children, and in her own interests, that she receive the treatment that she needs. 

The family report

1. Dr M’s family report has in part been paraphrased already.  I note inter alia, that:

   a)The mother disputed Dr E’s recommendations that she needs ongoing psychiatric intervention (paragraph 37).

   b)X told Dr M that his mother feels sad when he spends time at his father’s house and that she and A will “miss us”. (paragraph 40). 

   c)

   X repeated the assertions of physical and sexual abuse by

   
   

   Ms E’s children (paragraph 41).

   d)Y said that D and B hurt him (paragraph 45).

   e)Y was looking forward to spending three weeks with his father during the holidays (paragraph 46) and had never been as frightened as the frightened bear card he was shown.

   f)Y told Dr M that Ms E makes him happy (paragraph 46).

   g)Z enjoyed spending time with his father (paragraph 49).

2. Dr M noted at paragraph 55:

   “The Mother presents as a highly anxious person and it is understandable how her energies are dissipated with four age demanding children with one her children experiencing a serious medical issue.  Nonetheless her behaviours were heightened and are indicative of an underlying mental health issue.  …” (sic)

3. Dr M also noted at paragraph 55:

   “The Mother asserted that the children have been subjected to sexual abuse by the Father’s step-sons and has raised these issues over a two year period without any substantiation by the Police.  These repeated assertions, if unsubstantiated, are suggestive of concerns regarding her mental health. …”

4. In the ultimate, Dr M said at paragraph 60:

   “The children have a close bond with their Mother and any interruption to this should be the last resort.  However, the Mother’s mental health is extremely concerning and the children’s best interests have been and will continue to be significantly compromised if she does not seek the appropriate psychiatric care.”

5. Relevantly, Dr M recommended the children continue living with their mother, but only if she engaged in psychiatric treatment as recommended by Dr E and that the children be referred to a child psychologist to assist with their exposure to the mother’s mental health issues. 

6. She further recommended the children cease any counselling with sexual assault services, that they not be restricted with regards to spending time with Ms E’s children, and should not, in the absence of extraordinary new evidence, be subjected to any further police interviews. 

The statutory pathway

1. Notwithstanding some subsequent amendment to the Family Law Act1975 (“the Act”), the summary provided by the Full Court of the Family Court in Goode v Goode [2006] FamCA 1346 is, in my respectful opinion, still an appropriate methodology for the determination for parenting cases such as this.

2. At [65], the Full Court said as follows:

   “Summary

   [65] In summary, the amendments to Pt VII have the following effect:

   1.    Unless the Court makes an order changing the statutory conferral of joint parental responsibility, s 61C(1) provides that until a child turns 18, each of 36 Fam LR 422 at 440 the child’s parents has parental responsibility for the child. “Parental responsibility” means all the duties, powers, and authority which by law parents have in relation to children and parental responsibility is not displaced except by order of the Court or the provisions of a parenting plan made between the parties.

   2.    The making of a parenting order triggers the application of a presumption that it is in the best interests of the child for each of the child’s parents to have equal shared parental responsibility. That presumption must be applied unless there are reasonable grounds to believe that a parent or a person who lives with a parent has engaged in abuse of the child or family violence (s 61DA(1) and 61DA(2)).

   3.    If it is appropriate to apply the presumption, it is to be applied in relation to both final and interim orders unless, in the case of the making of an interim order, the Court considers it would not be appropriate in the circumstances to apply it (s 61DA(1) and 61DA(3)).

   4.    The presumption may be rebutted where the Court is satisfied that the application of a presumption of equal shared parental responsibility would conflict with the best interests of the child (s 61DA(4)).

   5.    When the presumption is applied, the first thing the Court must do is to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend equal time with each of the parents. If equal time is not in the interests of the child or reasonably practicable the Court must go on to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend substantial and significant time with each of the parents (s 65DAA(1) and (2)).

   6.    The Act provides guidance as to the meaning of “substantial and significant time” (s 65DAA(3) and (4)) and as to the meaning of “reasonable practicability” (s 65DAA(5)).

   7.    The concept of “substantial and significant” time is defined in s 65DAA to mean:

   (a)     the time the child spends with the parent includes both:

   (i) days that fall on weekends and holidays; and

   (ii)    days that do not fall on weekends and holidays; and

   (b)     the time the child spends with the parent allows the parent to be involved in:

   (i) the child’s daily routine; and

   (ii)    occasions and events that are of particular significance to the child; and

   (c)     the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.

   8.    Where neither concept of equal time nor substantial and significant time delivers an outcome that promotes the child’s best interests, then the issue is at large and to be determined in accordance with the child’s best interests.

   9.    The child’s best interests are ascertained by a consideration of the objects and principles in s 60B and the primary and additional considerations in s 60CC.

   10.  When the presumption of equal shared parental responsibility is not applied, the Court is at large to consider what arrangements will best promote the child’s best interests, including, if the Court considers it appropriate, an order that the child spend equal or substantial and significant time with each of the parents. These considerations would particularly be so if one or other of the parties was seeking an order for equal or substantial and significant time but, as the best interests of the child are the paramount consideration, the Court may consider making such orders whenever it would be in the best interests of the child to do so after affording procedural fairness to the parties.

   11.  The child’s best interests remain the overriding consideration.”

Joint parental responsibility

1. Dr M has recommended joint parental responsibility.  The present orders provide for joint parental responsibility.  The father seeks an order that he have sole parental responsibility (see the orders sought at paragraph 136 of his trial affidavit filed 21 January 2013).  The Independent Children’s Lawyer, as I understand the matter, seeks that the existing order for shared parental responsibility continue, as does the mother. 

2. The presumption as to equal shared responsibility must be applied unless there are reasonable grounds to believe that a parent has engaged in abuse of a child or family violence (s.61DA(1) and s.61DA(2))

3. The presumption may be rebutted where the Court is satisfied that the application of it would conflict with the best interests of the child (s.61DA(4)). 

4. Notwithstanding the force of the criticisms of the mother’s past and possible future conduct indicated in the written submissions filed on behalf of the father, I accept the position of all the other parties, including Dr M, that the order for equal shared parental responsibility should be continued. 

5. While I will deal with this matter further in considering the children’s best interests below, it is sufficient for these purposes to note that while the mother’s past conduct is extremely concerning, the orders sought by the Independent Children’s Lawyer would, in my view, address the issues to which that conduct gives rise. 

1. The presumption being applied, the Court has to consider whether an order for equal time should be made.  No party seeks it or suggests that that is an appropriate outcome in this case.  In my view, that is sufficient to dispose of the matter.  It should further be noted, however, that these parties have the greatest of difficulty in communication and a long history of mutual mistrust.  The prospect of equal time being successful is non-existent. 

2. Both parties propose substantial and significant time for the non-custodial parent, and accordingly, it becomes a question now of considering which parties’ proposals are in the best interests of the children.

The primary considerations in section 60CC(2)

1. Everybody agrees that it is appropriate for these children to have a meaningful relationship with both of their parents.  All parties agreed that there is a need to protect the children from both physical and psychological harm and from being subjected to or exposed to abuse, neglect or family violence. 

2. I have already made it clear that the allegations of sexual abuse whilst in the father’s care are ones that I dismiss entirely.  There is no abuse from which it is necessary to protect the children in this regard.

3. The question is whether, as is emphasised in the father’s submissions, the mother’s conduct, and possible future conduct, in over-exposing these children to psychological abuse by being the subject of endless referrals to DHS, SOCIT and other third parties will constitute abuse within the expanded definition in the Family Law Act.

4. It is clear that if the mother cannot change, then there is a real risk of such abuse occurring.  The calibration of that risk is what in my view, in large part, this case is about. 

The considerations in section 60CC

Section 60CC(3)(a)

1. The most reliable guide to the children’s views in this regard is the report of Dr M.  In paragraphs 58-60, Dr M said:

   “58.  The children all convey a close relationship with both parents.  The boys described a close bond with their Mother and X appears to be very dependent on her which is understandable given her attentiveness to his medical care.  X appears to be the most divided in his allegiances; expressing a positive relationship and desire to spend time with his Father yet also disclosing abuse in the Father’s household.  It would appear that X has been burdened by his Mother’s negativity towards his Father and has been put in the invidious position of needing to please his Mother.  This was conveyed by his repeated disclosures of abuse, with no substantiation of the allegations during two separate Police investigations.  If he has been exposed to his Mother’s negativity on an ongoing basis, it is difficult to ascertain whether he has begun to believe some of these views.  It is also difficult to decipher his views from those of his Mother’s.  The internal stress for this child is that he loves his Father and wants to spend time with him.   Any further emotional stress for X is likely to have harmful repercussions given his significant cardiac condition.

   59.  It does not appear that Y and Z are burdened with the Mother’s negativity to the same degree as X.  Y made some references to being physically harmed but did not disclose any sexual abuse in his Father’s household.  Y was excited at the prospect of spending a three week period with his Father over the school holidays.  Z was more carefree and did not refer to any concerns in his Father’s house.  He was aware of his Mother’s sadness when the children spend time with their Father.  Z disclosed being questioned by his Mother after visits suggesting that the children are subjected to the Mother’s anxiety which raises further concerns about the impact of her mental health on their well-being. 

   60.  The children have a close bond with their Mother and any interruption to this should be the last resort.  However, the Mother’s mental health is extremely concerning and the children’s best interests have been and will continue to be significantly compromised if she does not seek the appropriate psychiatric care.”

2. Dr M went on to recommend that the children live with the mother and that equal shared parental responsibility occur, together with recommendations as to the treatment of the mother and the children.

Section 60CC(3)(b)

1. Each of the children loves their parents.  It is not necessary to do more than to refer to the report of Dr M set out immediately above. 

2. It is clear that the children also have a close relationship with their step-sibling, A, and that they like to spend time with her.  They seem to me also to have a good relationship with Ms E.  This finding is one I make obviously not on the basis of the family report, as Ms E and her children were not involved in it.  Nonetheless, Ms E’s evidence was given with conviction, and her description of the good relationship between her and her own children and Ms Kenny’s children was persuasive.  Although there must doubtless be tantrums and difficulties from time to time in what would be clearly a crowded household, I accept, notwithstanding the purported disclosures of the children, that the relationship between them and Ms E’s children is at the least satisfactory.

Section 60CC(3)(c)

1. Neither of the parents, in my view, can be the subject of any significant criticism about the matters raised by this subsection.  To the limited extent that the father may not have participated in health appointments for X, this arose out of the perfectly proper and understandable reservation on his part as to the stress that his attendance was causing X because of the difficulties between his parents.  Otherwise, both parents have sought properly to participate in decision making about major long term issues in relation to the children, to spend time with them and to communicate with them. 

Section 60CC(3)(ca)

1. As earlier indicated, the father presents as an extremely committed, loving and dutiful parent.  His application in this case has been bona fide for the best interests of the children as he and his partner said. 

2. Unfortunately, the mother’s conduct in the past, including her serious ill health in early 2012, and the ongoing and obsessive nature of the reports made to DHS, the police and the like, has clearly failed properly to fulfil her obligations as a parent.  There is no doubt that she genuinely believes, and indeed fervently so, the allegations of sexual abuse and violence that have been raised against the father’s household.  That belief, however, is misconceived and not properly founded.  There is no question that the exposure of the children to the all too frequent interventions that have occurred in the past is a matter of great and ongoing concern. 

Section 60CC(3)(d)

1. In my view, any change in residence for the children is likely to be extremely traumatic for them.  This is particularly the case for X, as Dr M noted in her report.  Furthermore, although Mr Shackleworth and Ms E present as entirely sincere and committed to making the changeover as workable as possible, even they had to concede, as

   
   

   Ms E in particular plainly and properly did, that the changeover would be extremely difficult to begin with, particularly for X. 

Section 60CC(3)(e)

1. Although there is practical difficulty and expense with any variation to the spend time regime, this is not a matter of any moment.  I accept that Mr Shackleworth has done his budget and could properly implement his proposed regime were it to be ordered. 

Section 60CC(3)(f)

1. Everyone agrees that the mother is a perfectly competent parent subject to her mental health issues and the sequelae of those issues for the children.  Equally, there is no doubt that Mr Shackleworth and Ms E are thoroughly competent parents. 

2. Whether they can provide for the emotional needs of the children, including their emotional intellectual needs is a more difficult matter.  The mother will not properly provide for their emotional needs if she does not get over her obsession with the abuse allegations.  This is of course a matter addressed by the submissions and proposed orders of the Independent Children’s Lawyer. 

Section 60CC(3)(g)

1. Here I have to bear in mind the age of the children who are still young, and of course the ongoing and serious health problems that X has the misfortune to suffer from.  Furthermore, I need to bear in mind the mother’s mental health difficulties and the perceptions arising from those difficulties.  There is nothing in Mr Shackleworth and Ms E, who both impressed me strongly as being thoroughly down to earth and sensible, reasonable people that causes me any concern. 

Section 60CC(3)(h)

1. This subparagraph is irrelevant. 

Section 60CC(3)(i)

1. While this is clearly a relevant matter of the attitude to the children and to the responsibility of the parents demonstrated by each of the parents has already been dealt with under the other subsections above. 

Section 60CC(3)(j)

1. It is of course arguable, and the father doubtless does argue, that the conduct of the mother in repeatedly exposing the children to the sequelae of the abuse allegations constitutes family violence within the expanded definition in s.4AB(1) of the Act.

2. In my view, it is not necessary or appropriate to endeavour to refine that issue to the ultimate because on any view, as all parties agree, the mother’s past conduct has been extremely concerning.  

3. I do not accept that there has been family violence in the father’s household for the reasons already given. 

Section 60CC(3)(k)

1. This subparagraph is not relevant, notwithstanding historical assertions of violence alleged by the mother against the father. 

Section 60CC(3)(l)

1. This is an area of some dispute. The Independent Children’s Lawyer seeks interim orders for the reasons set out in the very helpful and extensive written submissions filed by the Independent Children’s Lawyer.  The father seeks final orders in his favour.  The mother seeks final orders in her favour. 

2. In my view, this aspect of the dispute is, in many ways, the kernel of what is left that is in dispute.  I note that Dr M said that the children should only be removed from the mother as a last resort.  She recommended that the mother undergo treatment to enable her to deal with the problems occasioned by her obsessions with the abuse allegations. 

3. In my view, the Independent Children’s Lawyer’s submission is correct.  At paragraphs 18 and 19 of the written submissions, the Independent Children’s Lawyer stated (at page 19):

   “18.  The Independent Children’s Lawyer would like to see the children have the benefit of their mother being given a fulsome opportunity to raise her awareness of their emotional needs and to see what, if any improvements, might be made by her, for their overall gain.

   19.  In particular, the Independent Children’s Lawyer would like to see a return to the usual contact regime, as that work is undertaken, and the ability by all children, X, in particular, to integrate both of his parents into his life with a sense of peace, authenticity, simplicity, openness and even enjoyment.”

4. The written submission goes on to recommend further support from an independent professional. 

5. Dr M, as I have already indicated, recommended that the mother undertake psychiatric treatment.  It is clear from the evidence of

   
   

   Dr E and of Dr M, which I strongly prefer to that of Dr D and Ms P, that this is a necessary position.  Indeed, the mother’s final written submissions adopt a similar position. 

6. Given the mother’s long history of difficulty, the assertion in the mother’s written submissions that the matter should end now cannot be sustained.  If she is not able to cope with her problems, then the children are highly likely, far more probably than otherwise, to be seriously damaged. 

7. In my view, the recommendations made by Dr M ought to be accepted.  Not only do they spring from Dr M’s expertise, which is considerable, and which was not in any way affected by the questions asked of her, but they make every sense in the light of the materials in the case as a whole. 

8. Accordingly, I propose to make the orders suggested by Dr M as encapsulated in the orders sought by the Independent Children’s Lawyer. 

9. While Dr M did not contemplate the appointment of Mr P, in my view the submission made by the Independent Children’s Lawyer is a telling one.  These parties will need assistance to move forward, and Mr P is an appropriate person to help them do so. 

Section 60CC(3)(m)

1. There are no matters other than those I have set out above that, in my view, call for further consideration. 

Conclusion

1. This is a terribly unfortunate case.  These three children have been burdened by the march of events, as have all the adults.  It would clearly be preferable to bring it to an end now were it possible to do so.  I am conscious of the risks that the orders proposed by the Independent Children’s Lawyer involve.  In effect, the mother is being told that she must abandon the belief system in which she has been wholly enmeshed for a number of years, or face the risk that the children are removed from her care. 

2. It is, however, clear that the children have not been abused as the mother believes, and she simply has to seek the necessary treatment to help her to come to terms with this.  For clarity, I should make it plain that there will be no restriction on B being present when the three children are with the father.  The evidence does not justify even the making of an order that he not be left alone with them. 

3. Any such order would just give rise, in my view, to a further lingering perception on the part of all concerned that B had in some way misconducted himself in circumstances where there is no objective evidence to support that proposition. 

4. I will direct the Independent Children’s Lawyer to prepare minutes of orders giving effect to these Reasons for Judgment and I will give the parties an opportunity to consider those draft orders and these Reasons for Judgment in case there are any matters that need to be addressed. 

I certify that the preceding one hundred and forty-four (144) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Date:  9 July 2013