Siddons and Siddons
[2019] FamCA 71
•19 February 2019
FAMILY COURT OF AUSTRALIA
| SIDDONS & SIDDONS | [2019] FamCA 71 |
| FAMILY LAW – CHILDREN – Parenting – where issues were modest but include orders arising from allegations made by young children. |
| Family Law Act 1975 (Cth) |
| Deiter & Deiter [2011] FamCAFC 82 ‘Psychiatric Risk Assessment in Child and Family Law’ (2008) 38 Family Law 569) |
| APPLICANT: | Mr Siddons |
| RESPONDENT: | Ms Siddons |
| INDEPENDENT CHILDREN’S LAWYER: |
| FILE NUMBER: | MLC | 9748 | of | 2014 |
| DATE DELIVERED: | 19 February 2019 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Cronin J |
| HEARING DATE: | 28, 29, 30 November 2018; 3, 6 December 2018, 4, 5, 6 February 2019 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Conlan |
| SOLICITOR FOR THE APPLICANT: | Leyton-Palma Lawyers |
| COUNSEL FOR THE RESPONDENT: | Ms Byrnes |
| SOLICITOR FOR THE RESPONDENT: | Clancy & Triado |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER | Ms Boymal |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER | Victoria Legal Aid |
Orders
All extant parenting orders are discharged.
The mother and the father have equal shared parental responsibility for the children X born … 2009, Y born … 2011 and Z born … 2012.
The children spend time with the father as follows:
(a) Until (and including) 1 February 2020;
(i)From 9.00am to 7.00pm on each alternate Saturday and each alternate Sunday (which shall increase according to the following orders)commencing on Saturday 23 February 2019;
(ii)From the conclusion of school on Friday 26 July 2019 to 5.00pm on Sunday 28 July 2019 and for a similar period in each alternate weekend thereafter;
(iii)On each child’s birthday from 3.30pm until 5.00pm and on the Father’s birthday from 3.30pm to 5.00pm;
(iv)From 3.00pm on 25 December 2019 until 5.00pm on 29 December 2019;
(v)From 12 noon on 9 January 2020 until 5.00pm on 12 January 2020;
(vi)From 12 noon on 23 January 2020 to 5.00pm on 26 January 2020; and
(vii)Commencing on 20 February 2019, on each alternate Wednesday by telephone or Facetime between 7.00pm and 7.30pm with the father to initiate the call to the Mother’s telephone and the mother to facilitate the communication with the children.
(b) From 1 February 2020 the following shall apply:
(i)From the conclusion of school on Friday to the commencement of school on the following Monday morning in each alternate week commencing on the first Friday after 1 February 2020;
(ii)For one week of each of the school term holidays and in default of agreement, from 10.00am on the first Saturday in the holidays until 7.00pm on the middle Saturday;
(iii)For one half of the long summer holidays (until agreed otherwise) on a week about basis (to be suspended during the period from midday on 24 December to 7.00pm on 26 December) commencing on the first Saturday in the holiday periods and concluding at 9.00am two days prior to the commencement of the new school year regardless of whether the periods are a full week or not;
(iv)On the birthdays of the children and of the Father (until agreed otherwise) from 3.30pm until 5.00pm; and
(v)By continuing the telephone and/or Facetime communication on each alternate Wednesday between 7.00pm and 7.30pm.
Paragraph (3)(a) shall not be suspended during school and summer holiday periods but after 1 February 2020, paragraph (3)(b)(i), shall be suspended during such holiday periods and paragraph (3)(b)(i) shall resume as if it had not been suspended by the school holidays.
The changeover of the children shall occur at school unless otherwise agreed save in respect of the orders relating to birthdays which shall occur at the Woolworths petrol station in Suburb G.
BY INJUNCTION WHICH SHALL EXPIRE ON 1 FEBRUARY 2020, the father is restrained from bringing the children into contact with the paternal grandparents (unless the parties otherwise agree in writing).
The father is required to attend upon and complete a “Tuning into Kids” course and provide to the mother evidence of the completion of that course.
Despite s 121 of the Family Law Act 1975 (Cth), each party is at liberty to provide a therapist, paediatrician or counsellor involved with the children arising out of these orders, the following:
(a) The two reports of Ms E; and
(b) These orders.
The order appointing the Independent Children’s Lawyer is discharged as and from 4.00pm on 4 April 2019.
Pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
IT IS CERTIFIED:
Pursuant to Order 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.
BY CONSENT AND WITH THE AGREEMENT OF THE PARTIES
IT IS FURTHER ORDERED
That the children live with the mother.
That for a period of 12 months, (or more if the parties agree) the mother and the father do all things necessary to attend upon, and facilitate the attendance of the children upon, Ms J or such other family therapist as agreed with the assistance of Mr E for therapy relating to all aspects of the welfare and development of the children and their relationships with the adults in their lives, the cost of such attendances (other than those requested specifically by one parent) to be paid by each party in equal shares.
That the mother and the father do all things necessary to facilitate the attendance of the children upon Dr H or such other paediatrician as they agree for the purposes of the preparation of an independent paediatric assessment and any expenses not covered by Medicare shall be paid equally between them.
That each party provide all necessary authorities to each other to engage any agreed medical practitioner or allied health professional associated with the treatment of the children arising out of these orders.
That the parties attend upon one medical clinic for the purposes of the treatment of the children.
UPON THE CESSATION OF THE INJUNCTION in paragraph (6), any such future contact shall be in the presence of the father or his partner Ms K until X turns 13 years of age.
That upon the cessation of the said injunction, the father follow all reasonable recommendations of the family therapist regarding the reintroduction of the children to the paternal grandparents.
That the parents use email and/or text messaging to relay appropriate information concerning the routines of the children, their medication and any other issues associated with their day to day care.
That by injunction, neither party shall permit the attendance of the children upon Ms L or any other counsellor without the prior written consent of the other.
THAT EACH PARTY IS RESTRAINED BY INJUNCTION from discussing the proceedings in the presence or hearing of the children or allowing any other person to do so.
THAT EACH PARTY IS RESTRAINED BY INJUNCTION from denigrating the other parent, the other parent’s partner or any member of the other parent’s family in the presence or hearing of the children or allowing any other person to do so.
THAT EACH PARTY IS RESTRAINED BY INJUNCTION from denigrating the religious beliefs (or the absence thereof) of the other parent.
IT IS NOTED BY THE COURT THAT each party consents to the other parent attending any extra-curricular activities involving the children as well as receiving any information about those activities that are normally available to parents participating notwithstanding those attendances may not be otherwise provided for by these orders.
IT IS FURTHER ORDERED BY CONSENT THAT the parties are required to provide to the other party their current telephone contact number and address and the relevant similar details of any partner and in the case of the mother, the paternal grandparent’s details including the provision of any alterations within 48 hours of any change.
AND EACH PARTY FURTHER AGREES:
Each parent inform the other of any serious illness, hospitalisation or injuries sustained by the children whilst in their care and provide the relevant details to enable the other parent to participate and assist in the treatment of the children.
That each will follow all reasonable recommendations and directions of the relevant professionals referred to in these orders.
That each will do all acts and things necessary to facilitate the children’s attendance at Social Skills LEAP program for as long as may be recommend by the family therapist and the cost of such attendances shall be borne equally; AND the Father agrees that the Mother be permitted to enable the children to attend on whatever services and support as may be referred by OzChild and/or Child First to the Mother
AND IT IS FURTHER ORDERED BY THE COURT
That all extant proceedings are otherwise dismissed.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Siddons & Siddons has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: MLC9748 OF 2014
Applicant
Mr Siddons
And
Respondent
Ms Siddons
Independent Children’s Lawyer
REASONS FOR JUDGMENT
These reasons concern the parenting dispute about the three children of Mr Siddons (“the father”) and Ms Siddons (“the mother”). The proceedings have been lengthy and difficult but ultimately, after a number of days of hearing, the dispute was confined to three issues. It is those three issues to which these reasons relate.
The litigation involved a significant number of witnesses many of whom were not called to elaborate upon, or to be cross-examined about, their evidence. With understandable complexities and difficulties within the parties’ personal lives, the majority of the witnesses were professionals. Even though the proceedings were ultimately confined to a determination of the three issues, each party still relied upon all of the evidence presented including that which was not challenged. It is not necessary for me to deal with much of that evidence other than in a summary or peripheral way but the lack of reference to that evidence must not be taken as a sign that it has been ignored.
To assist the parties to get on which raising the three children, these reasons are focussed on the issues requiring determination and little more. That is not to say that all of the things that were canvassed were not important.
As will be seen, there has been a myriad of historical problems and only in the last days of the hearing, and after an interim determination was made in December, the parties’ direction changed. The court was asked to accept that there was a wind of philosophical change evident and that both parents were committed to making the children’s relationship with both parents work.
The children
The three children are X aged 10, Y aged seven and Z aged six years. Notwithstanding the way the proceedings began, and indeed were conducted, it is common ground that all three children will live with their mother.
The success of any shift by both parents relies upon their cooperation with an intensive family therapy regime which was not only recommended by the family report writer Ms E but also by other professionals.
The “elephant in the room” is the palpable mistrust still remaining not just between the parents but between their families. Only time can heal that rift. Evidence of goodwill can be seen in the fact that the orders published with these reasons contain the parties’ general agreement (or consent) to a number of matters. The fact that the court has not been required to determine those matters does not mean that the orders do not carry the force of the law. Those orders are enforceable in the same way as the determinations of the court. The orders whether consensual or otherwise have also been made on the basis of the best interests principles set out in Part VII of the Family Law Act 1975 (Cth) (“the Act”).
In these reasons therefore, I have done the best I can to explain why the court’s intervention has occurred in respect of the three issues each of which requires findings of fact drawn from the complicated background of these parties. It is important to observe that findings of fact have been made on the balance of probabilities. That is, what probably happened. That is important to note because of the implacable beliefs of the maternal family to which I later refer.
the three issues
The three issues determined here are:
(a)Whether the parties should have equal shared parental responsibility or the mother have sole parental responsibility for major long term decisions relating to the children;
(b)The determination of the finer details of the father’s future time with the children; and
(c)Most contentiously, the involvement of the paternal grandparents in the lives of the children in the future.
The first issue
Of the first issue, the focus is on the capacity as well as of the desire of the parents to communicate about major long term issues concerning the welfare and development of the children. Major long term issues is a phrase defined in s 4(1) of the Act as follows:
major long‑term issues, in relation to a child, means issues about the care, welfare and development of the child of a long‑term nature and includes (but is not limited to) issues of that nature about:
(a) the child’s education (both current and future); and
(b) the child’s religious and cultural upbringing; and
(c) the child’s health; and
(d) the child’s name; and
(e) changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.
To avoid doubt, a decision by a parent of a child to form a relationship with a new partner is not, of itself, a major long‑term issue in relation to the child. However, the decision will involve a major long‑term issue if, for example, the relationship with the new partner involves the parent moving to another area and the move will make it significantly more difficult for the child to spend time with the other parent.
Thus, the parties have to work out the day to day management of their children between themselves. It is not the function of the court to intervene in every facet of family life and all parents have the right, even where they disagree, to raise their children as they see appropriate. The role of the court is to intervene where that desire of a parent is seen by the law as not being in the best interests of the child. In this case, issues such as bedding and showering of children were raised but in my view, the parties need to determine those matters themselves.
What was contentious, although there was ultimately no evidence of any substance, was an accusation raised in final address by the mother, of concerns that the father has denigrated her religious beliefs which are manifested by the children attending church services each Sunday particularly under the guiding hand of the maternal grandfather. In discussion, it became evident that the court did not need to intervene and accordingly no orders are made because the parties had agreed to a non-denigration order and all agreed that it fell within that description.
The second issue
The second issue relating to time was a matter of tinkering with proposals. As counsel for the mother put it, her client’s proposals about holidays, weekends and extended times were not critical and there was not a lot of disagreement. I have endeavoured to stay as close as possible to the desire of the parents but it will be self-evident that there are no legal principles that assist in the determination of the quantum of time. However, I have been very much guided by the expert evidence of psychologist Ms E.
The third issue
The third issue was the most difficult. This relates to a positive injunction against the father about bringing his parents into contact with the three children whilst they are in his care. There was general consensus as to how the injunctive power of the law was to operate but there is a significant dispute about whether there was a basis for the court to make such an order. Ironically, the resistance to that order came mostly from counsel for the Independent Children’s Lawyer who submitted that there should not be any restraint on the paternal grandparents.
The accusations against the paternal grandparents that were initially said to give rise to that injunction arose from statements made by the children about having been sexually and physically abused by their grandparents. Much of the evidence to which I refer below focusses on that evidence. There is no objective evidence to enable a finding to be made that the events asserted by the children occurred. That is not to say that there is not an unacceptable risk of harm to the children because harm involves more than just physical or sexual concepts. In this case, the court’s greater concern relates to the emotional and psychological harm arising out of the belief systems of the maternal family.
For the reasons that I shall set out below, I find there is an unacceptable risk of harm to the children absent orders restricting contact. That risk justifies the limitation of the nature of the contact between the children and the grandparents for the foreseeable future. That risk of harm is psychological and emotional and it is a delicate area that requires explanation.
To be clear, there were also statements made by one of the children that she had been inappropriately “tickled” in the genital area by her father. In interim reasons published when the proceedings were adjourned in December, I found there was no unacceptable risk and on the evidence, I could not find that the events occurred the way described by the child. I made that finding on the balance of probabilities and I again stress that that is all the court has to rely upon. However, it is also significant to note the evidence of the expert that the statements of children have to be seen in the context in which the asserted event occurred and also how the relevant event was ultimately described to the person who first heard of it from the child. Having considered that evidence, I found in December there was no unacceptable risk of harm and made orders. The contact orders have been implemented over the summer break successfully and there have been no problems.
Background
The father is aged 35 years and the mother 37 years. The father has had consistent full-time employment for some years and the mother is generally engaged in caring for the children.
The father has committed himself to a new relationship with Ms K who has two children and who works on a part-time basis.
The parties began living together when the father was 23 years of age and the mother 25 years. It would not be unkind to say that one of their mutual attractions was a lifestyle of drugs and alcohol.
Notwithstanding I am satisfied that the maternal grandparents provided a stable home for their daughter and gave the impression of having strong community and moral values, the mother in these proceedings had significant problems growing up. She conceded she was consuming alcohol from the age of 12, smoking marijuana from the age of 13 and was using heroin at the age of 14. There were suggestions, although not recalled by the mother, of her use of antidepressants at the age of 14 years. In 1999 at the age of 17 or 18 years, she was admitted to hospital where a diagnosis of schizophrenia was contemplated. In the following year, 2000, she had a psychotic episode from a polysubstance use.
When the parties met in 2005, there appeared to be some stability in the mother’s life. However, both conceded they were using drugs on a party basis. In the year of their marriage, X was born and Y and Z followed modestly soon thereafter. They even bought a house and the mother conceded they stopped using drugs for most of the time but, even on the father’s evidence, he was consuming large quantities of alcohol. Prescribed medication was provided to the mother for her behaviour including Valium which, if unobtainable, she “doctor shopped”.
Z was only a few months old when the mother was admitted to hospital for depression fundamentally arising out of self-medicating practises. There was even a situation at that time where the hospital endeavoured to have her use day leave. In her evidence, she did not remember not wanting to go, but that was a statement recorded in the hospital’s notes. The mother conceded she was not “very well” around that time.
It is important to acknowledge that at that time, X was three, Y not quite two years and as I said, Z only a few months old. The father took on the responsibilities over a period of five weeks of the mother’s hospitalization and I am satisfied that the main assistance came from the maternal grandmother. That is not to say that the father was not involved with, and interested in, the children.
In a candid statement, the father conceded that he had had no concerns about the mother’s care of the children when she was at home with them notwithstanding he well knew she was using prescription drugs heavily. By the time the admission to hospital for five weeks occurred, he thought her mental health situation was “bad”. Indeed, he “saw it coming”. He conceded that he was drinking “a lot”. All of this is relevant to a troublesome question of the attachment relationship of the children with both parents.
The final separation occurred just after the mother was discharged from hospital. The father’s evidence was that the mother told him to leave and he did so by taking his clothes and the dog. He acknowledged that the mother’s problems had not gone away and when asked why he left the situation as it was, he simply said that she had told him to go. Significantly, he left the children behind.
Subsequent to that separation, the father had Sunday time with the children for a number of hours. Given that limited contact, it is inconceivable that any serious attachment to the father was occurring at least in relation to Z.
The contact point for the father to develop his relationship with the children was the maternal grandparents. They lived across the road from the mother. The father’s evidence was that his relationship with the grandmother was “hot and cold”. He went to the house and the children came out to him. Most of the time, the mother was present but there was no discussion. He knew little about what was going on in the lives of the children. There was some suggestion that he was not told of the errant lifestyle of the mother but I find he did not ask.
Soon after the physical separation, and for reasons that remain obscure and probably irrelevant, the mother applied for an intervention order which included the children as people to be protected. In April 2013, a 12 month order was granted by a magistrates’ court yet the father’s relationship with the children assisted by the maternal grandmother continued on.
In July 2013, the mother was seeing a counsellor. Notwithstanding the assistance she was receiving, she attended a pop concert where she injected Speed and drank alcohol which she said was provided by an acquaintance. That led to another disastrous health breakdown. In August 2013, so only seven months after her previous discharge, the mother was again admitted to hospital. However, whilst an inpatient, she called the father and asked him to attend to collect her, and notwithstanding the intervention order, he did so. He described attending the hospital where he found her with a drip in her arm and an obvious high fever. He then watched as she consumed 20 Valium tablets. He did not tell anyone at the hospital what he had seen and indeed drove her home from the hospital. On the way, he noticed that she was drowsy but did not fall asleep and she seemed “okay”. They stopped for take-away food which they ate in his car in Suburb M and then he delivered her home where she offered that he could stay and sleep on the couch, an offer he declined. He did not contact the maternal grandparents across the road nor did he see the children at that time. He was candid enough to concede that his conduct was highly irresponsible as the mother could have died.
The father’s Sunday time with the children continued thereafter.
Whilst the father was having the time with the children, and specifically between September 2013 and February 2014, the mother was an inpatient at a facility particularly focussing on rehabilitation. She continued to have sessions with her counsellor.
The mother’s drug usage continued and her association with at least one man was extremely dangerous. She was seriously assaulted on one occasion at a time when the children were in the house. Despite that lifestyle, she was getting substantial assistance from her own parents in respect of the care of the children. She conceded that she had not told the father of any of these problems but then again her view was that he was not interested.
There were significant self-esteem issues which resulted in cosmetic surgery. Around this time, problems with the children began to appear. X was attending counselling at the age of five and although the mother was not able to indicate why that was so she did not dispute there was a reference in the specialist’s notes to the child suffering stress. It has to be understood at this time that the mother was having significant mental health issues and her present diagnosis is Borderline Personality Disorder.
Ms N
Ms N is a clinical psychologist who provided an affidavit but who was not required for cross-examination. She has provided assistance to the mother since July 2013 after which the appointments were regular. In March 2015 however, things started to go wrong.
The complaints by the children
In the early part of 2015, all children seemed to have been exhibiting sexualised behaviours. Some related to kindergarten, others related to home. In April 2015 a report was made to police that the paternal grandfather was bathing with the children and an unusual assertion occurred that X’s hair was being cut in odd places. Five year old X talked of the grandfather locking her in a dark garage. All of these were brought to the attention of the Victorian Department of Health and Human Services and X was engaged with psychologist Ms L. The mother and grandmother took Ms L to those appointments. The reports of Ms L were canvassed in cross-examination.
The Department of Health and Human Services provided a report under s 67Z of the Act in response to a Notice of Risk and indicated that their records showed that in discussions with Ms L, the psychologist told them that X was seeing her for support so that she was able to talk about her emotions and thoughts. The psychologist thought that X had not made up the allegations.
Investigations by the Department of Health and Human Services generally found nothing corroborated the views of the children. The paternal grandparents expressed shock at the allegations and in relation to any physical abuse by them, the father maintained that he was always present throughout any time that the children were in his parents’ care. The sexualised behaviour of X included rubbing her mother’s nipples about which the mother felt uncomfortable. She had asked X why she was doing it and X responded that her grandmother did it. The mother’s view was that it was sexualized behaviour.
By May 2015, X’s teacher described X as “emotionally broken” and hesitant emotionally. The mother’s view was that all of these issues revolved around X’s incapacity to sleep. No consideration was given to problems of attachment.
After September 2016, the sexualised behaviour continued and in December 2016 Z asked her mother to “tickle” her and pointed to her inner thigh. The mother then went to Y and asked her whether her father tickled her. Y said that he had not but that her grandfather had. Y then began to rub her vagina up and down including adding that her grandfather digitally penetrated her and that she cried. She then said that her grandmother was sometimes in the room and that her father was outside doing something else. She then accused the paternal grandmother of digital penetration.
The investigations
This first allegation of sexual impropriety against both the grandfather and the grandmother went to the police. There, Y and Z refused to be interviewed and X refused to cooperate when an interview was attempted. The children were then referred to the Centre Against Sexual Assault. Suffice to say the Department of Health and Human Services and the police were not prepared to take any steps based upon the statements that had not advanced beyond what the children had said to their mother.
The maternal family’s view
The maternal family’s view is that the Department had (and has) not taken the matters seriously. The maternal grandfather believed that whatever the children said was true.
The paternal family’s evidence
The paternal grandparents both gave evidence, as did the father, to indicate that there was nothing in any of the visits around that time that might have explained the sort of conduct alleged against them. For example, the paternal grandmother denied she had cut any of the hair of the children save possibly when a piece of chewing gum needed to be removed. However, according to both the maternal grandmother and the mother, when the children were bathed, it was obvious that the hair had been cut and not in any cosmetic way. The mother said that her hairdresser had confirmed the odd cuts and she thought that she had a photograph but it was never produced. The hairdresser was not called to give evidence either.
Combined with the sexualised behaviour, the expressed fear of the children attending upon their grandparents, and the cutting of the hair, have all led to the implacable belief on the part of the maternal family that what the children had said had occurred. When the maternal grandmother was questioned about the hair issue, she was unable to say who, including possibly the children themselves, had undertaken such bizarre behaviour. She was reticent to point her finger at anyone. It is unusual however that the grandmother had not asked for more detail.
The paternal grandfather had telephoned the maternal grandfather prior to this allegation to see whether there was some prospect of “sorting things out”. I understood that to be reference to sorting out the nature of the relationship between their respective adult children. The maternal grandfather described the conclusion from the discussion as “agreeing to disagree”. That ended any communication. However, it was not controversial that the paternal grandfather had bathed with his children and also bathed with his daughter’s children to show the parents how to wash babies. The father’s sister gave evidence and acknowledged that her daughter had been in the bath with the paternal grandfather up until her children turned three. The maternal family finds this conduct strange.
Whether these sorts of issues set the foundation for mistrust, I am unable to say but it is all relevant to the issue of the expert evidence of Ms E to which I refer later about the context in which children say things.
The allegations against the grandparent gives rise to both parties agreeing that there should be an order or injunction against the father bringing the children into contact with their paternal grandparents. The dispute is about the duration and extent of the order. The Independent Children’s Lawyer does not see a need for an order.
To the extent that any determination can be made on the balance of probabilities as to whether the sexual assault allegations were true, it is not the court’s function to make such a determination unless the evidence is clear and where the court is comfortable in making such a finding. I am not in a position to make that positive finding here. The function of the court is therefore to focus on the best interests of the children and below, I shall make an assessment of the risk associated with the children coming into contact with the grandparents.
The second incident
The second incident of concern was as late as July 2018.
On 5 July 2018, the Department of Health and Human Services received a report that the father had tickled X on the vagina and bottom over her clothes and that X had told him to stop. It was said that she was watching a movie on the father’s bed during a birthday party for Ms K’s son W where X had left the party room because she had not been feeling well.
The complaint first came to the attention of the mother a day after this party when the maternal grandmother told her of what the child told her. This was odd because the mother had collected X from the party and X made no complaint at that time.
The maternal grandmother’s evidence about the child’s complaint
On 2 July 2018, Ms O, the maternal grandmother, was caring for the children who had stayed that night at her house. It was school holiday time. Whilst putting X and Z to bed in a double trundle bed, the children told each other a “knock knock” joke and were laughing. Both children were dressed in sleepwear. At the conclusion of the laughing, the maternal grandmother saw X grab Z over the clothes in the vaginal area and then tickle her in that area. She said that Z did not flinch or pull away and so she asked X why she had tickled Z “inappropriately”. X replied with a question asking whether it was bad to do so whereupon the grandmother indicated that it was “inappropriate” to tickle someone in the “private parts”. X replied that “Daddy tickled me there”. This led to a description by X that she was on a bed at her father’s home during the birthday party and her father came in and tickled her on the “vagina and bottom”. She said to him to stop but he had replied “That will be enough fun for now”.
The grandfather speaks to the child
The maternal grandmother told the maternal grandfather about what she had seen and on the following morning whilst preparing breakfast for Z and X, he spoke with X and said that he had been told by the grandmother that “something happened with Daddy”. He said that X told him about the incident in which the father had “tickled” her vagina and bottom. He said he told X that she was brave having the courage to say something. He in turn told the mother what he had heard. It is difficult to know whether these questions corrupted the accuracy of X’s story and that issue is addressed by the expert below.
The incident at the birthday party led to the intervention of the Department of Health and Human Services. X was interviewed and told the interviewer that her father had tickled her vagina and bottom for approximately 30 seconds until she told him to stop. Contextually, this was put as the birthday party and X said that it made her feel disgusting and weird. She said she felt angry, sad, annoyed, unsafe and disappointed. She was worried about her father touching her again.
The interview led to the Department requiring the father to separate from his partner Ms K because it was not prepared to allow him to remain in the presence of her two children. That ended after the assessment of the family consultant but there remained a strict supervision regime.
The father’s evidence
The father gave evidence that no such incident occurred. He was subjected to cross-examination and no incident that he could think of could be said to be consistent with the description given by X. X was clear in her allegation and consistent having told a number of people including the investigators that it occurred.
Like the previous incident, I am not in a position to say that the incident itself occurred. The unusual feature here is that it could not be said that there was an alternative hypothesis. The father said it did not happen at all.
In interviewing X, clinical psychologist Ms E thought there was a good relationship between father and child and X was certainly not frightened of him. Subsequent events have shown that with or without supervision, there is a closeness between the father and X and subsequent to December 2018, no similar event has occurred.
The toilet incident
There is another event earlier where Z told her mother that in June 2018, the father called out to her to come into the bathroom where he was in the process of urinating and said “Do you like my doodle?” to which Z replied “That’s inappropriate”. That incident too was emphatically denied by the father. Again, I am not in a position to make a finding that it did occur.
Absent the court’s capacity to make a positive finding that these incidents occurred, the focus must now be on the question of what sort of relationship there should be between the children and the respective adults and how, if at all, those relationships should be constrained if there is an unacceptable risk of harm to the children. Before making any such assessment, it is important to understand the evidence of the expert Ms E and the views of the Department.
The Department of Health and Human Services
The Department of Health and Human Services made clear they had no further involvement with the family and did not intend to participate in the proceedings themselves to promote any particular orders.
By a responsive report dated August 2018, and obviously consequent upon the July 2018 incident, the Department described its investigation and then said that it could not substantiate the allegations against the father but qualified that by saying that was subject to a police investigation that was then ongoing. The police subsequently indicated they would take no further action either. The Department also said it had no information to support the allegations of the paternal family that the maternal family was “feeding” sexual abuse allegations to the children. The Department considered that contact between the father and the children should be supervised until information was received from the specialist sexual assault unit which presumably had been tasked to help X understand what she had been saying. The Department noted the long-standing acrimonious relationship between the respective sides and indicated that it was important to have family therapy. It was also suggested that each child have a counsellor and other supports as may be required.
The evidence of Ms P
Ms P is the senior child protection practitioner engaged by the Department of Health and Human Services at Suburb Q. She became involved subsequent to the report to which I have just referred arising from a Notice of Risk document filed at the court. The consequence of a Notice of Risk is that the court copies the whole of the file and provides it to the Department. Ms P who has extensive qualifications and ten years’ experience was able to tell the court that she had reviewed the whole of the Department file and she assured the maternal family that to the extent that any report was made, it would be taken seriously. She said that she was concerned about the alienation of the father which she believed emanated from the maternal grandmother. I do not accept that view having heard all of the evidence and in particular, the evidence of the grandmother. I have no hesitation in finding that the grandmother and the grandfather are hyper-vigilant and emphatically believe what the children have said. However, it is evident from the views of Ms E, that what those children say has to be looked at in the context of not only how the statements arose but also how the incidents they described could possibly have arisen.
Ms P went on to say that she had no protective concerns in respect of the care of the children with either parent and that she agreed that view was a significant shift from the position adopted by the Department in August 2018. However, as I have described, the police investigation is now complete, the counselling and the therapy are going to be considered in the future and thus, should anything happen to the children, the Department is willing to investigate anything new.
Ms E
Ms E is a child and family psychologist and a Regulation 7 family consultant under the Family Law Regulations. She has been practising as a psychologist since 1977 and has the appropriate qualifications to be seen as an expert to advise the court. No party challenged her expertise. Indeed from the mother’s perspective, the court was told that she has great faith in Ms E.
Ms E prepared a report for the trial on 25 November 2018. It is a comprehensive report.
Ms E noted in the background that the children were very cognisant of privacy. She gave an example of where Y said to her sister at a swimming pool dressing room “Just make sure no-one sees your private parts”. Another incident raised in evidence was that when the children were changing into their swimming clothing, they were resistant to the father entering the room.
Ms E was also aware of the paternal grandfather’s views about bathing with children including his grandchildren.
Ms E was able to give the court an objective description of the children which was not challenged by anyone. She described X as having a positive relationship with her mother indeed as a “hero” who took care of them. X had nothing negative to say about her mother. That is important in the context of X being the oldest child growing up and watching her dysfunctional and ill mother.
Ms E described Z as compliant but fidgety and the child most likely to be involved in conflict with the siblings.
Y was described by Ms E as having a positive view about her mother whom she held in “high esteem”.
Ms E was concerned about the mother’s mental health. She noted the diagnosis of Borderline Personality Disorder and also her anxiety. She said that Borderline Personality Disorder did not mean that a person could not be a good parent but acknowledged that she certainly needed assistance.
With the knowledge of the background to which I have already referred, Ms E raised the question of the attachments that each child had with the respective parents. She noted the experience of the children of their mother being hospitalised and absent with several caregivers involved. She opined that given the experiences of the children their reaction or behaviour can often manifest itself in anger and they might feel abandoned metaphorically, emotionally or physical whenever their mother left them not understanding what was happening. That environment created anxiety.
The manifestation of that observation is now evident. The maternal grandmother and mother both described similar things in the children. I have no doubt that the children want to be close to their mother and that leads into the question of the amount of time each should be away from the mother with the father. Ms E was blunt in her assessment saying that in their mother’s home, the children needed structure and stability. She said they will need that stability for quite some time.
In my view, accepting that unchallenged evidence, it was sensible of the father not to proceed with his initial application to remove the children from the mother.
During the hearing, I made observations about the irresponsibility of parents who use illicit drugs and abuse alcohol excessively. It was Ms E’s view and I quote:
It is plausible that [X’s] attachment with her mother is disordered given her mother’s substance use. When the parent abuses alcohol and illicit drugs and other substances, this impacts upon the parenting of children. Parents using alcohol to excess create a risk for children, in terms of neglect, poor supervision, and many parents fail to meet the children’s emotional and physical needs.
Although the quote just given was directed by Ms E towards the mother she added that in respect of the father, his profile indicated a significant use of alcohol and he might wish to cease that if he was to have the care of the children. The father was asked a number of questions about his consumption of alcohol and whilst it would certainly appear to be under control, he used phrases such as “having a few” beers. The father needs to think carefully about the advice of Ms E in respect of pressing for extensions of time with the children too quickly before therapy is completed in circumstances where their main attachment is to their mother and that attachment has already been disrupted, if not seen to be shaky. If he is to have the care of the children, it is critical that he spend time devoted to them. This evidence means the court needs to take a cautious approach to the children’s time away from their mother.
Ms E made a number of recommendations in November 2018 most of which have now been channelled into what the parties have agreed in the orders that I have made.
As the proceedings had to be adjourned over the summer holiday period, Ms E undertook another report bearing in mind the restrictions on the father’s time with the children were removed over that period. Ms E noted that the mother still struggled with the children’s behaviours saying that Z was violent both physically and verbally and that X had been unsettled, withdrawn and quiet at times since November. That was manifested in X using “baby voice” and Y having difficulty staying overnight at the home of her grandparents. In respect of Y, the maternal grandmother indicated that quite unusually, Y has now begun to stay with her siblings. It may be that things are starting to settle down.
The oral evidence of Ms E expanded upon her report substantially. Prior to her arrival at the court, there was discussion amongst counsel as to the court being assisted by an in-depth analysis as to why the children might have said what they did certainly in respect of the two main incidents to which I have already referred but specifically the second involving the father. The evidence of Ms E was helpful.
Ms E said that the consequence for children of a mother with Borderline Personality Disorder was that the child found it difficult to trust the world. That was because their mother was in and out of that world and there is no better example of that than the earlier chronology. Z spent a large portion of her first three years being cared for by her maternal grandmother. Ms E opined that it was probably the grandmother whom Z saw as the authoritative figure in her life. All parties described Z as presently very aggressive and outgoing whereas Ms E said that what was being witnessed was not just an extrovert at play. The position in respect of this family was complicated by the fact that the father had had a limited role, albeit consistently through the early years. Subsequent to December 2018 when restrictions upon his care were lifted, he acquired a number of gifts for the children when they came to see him. Ms E was not critical but rather cautioned against that approach of buying affection.
Ms E said that Z was largely following her sisters and that it was her “frame” through which she saw things. She said Z was seeking an emotional attachment to the mother and she was only now relearning the attachment to her father.
In the view of Ms E, the appointment of an overall therapist to work with this family was critical for the purposes of consistency and stability not only for the children but also for the mother. In respect of the children, the Borderline Personality Disorder created a feeling of abandonment for them. They needed, but appear have not been given, the reassurance that the world is okay.
With the mother having this affliction, there remained uncertainty for the children. There is no dispute in this case that the mother was in and out of their world and they learned not to trust that world. That is consistent with the observations of the maternal grandmother who said that the children expressed a desire to be with their mother but she was able to convince them that their mother was ill and they then moved on to live in their grandparents’ world.
What Ms E opined was that there was a consistent need to reassure the children that the mother would remain in their lives and that providing them with consistency would enable stability. In respect of the father however, his role had also been limited and he needed to rebuild the role of trust.
Z’s cognitive ability to learn about her father very much depended upon following her sisters’ lead but in the expert’s view, the child craved the emotional attachment to her mother. The caution from the expert was that too quickly a move into the care of the father would not be good for Z.
The allegations
The fundamental question then remained as to why the allegations I may suddenly have been made by these children. It is to be remembered that when pressed, the father denied any incident consistent with the description given by the children.
What follows is a synopsis of Ms E’s evidence. She said it is difficult to know the context of what a child was saying because adults heard something and then tended to fill in gaps. If a child is continually asked questions emanating from the statement made, the child quickly becomes uncertain as to how to answer. Children are brought up to answer authority figures. To stop someone asking them questions, children will often answer anything that comes into their head. In this case, Ms E did not have the context of how and where and why this particular incident occurred and how X felt about it other than the fact that she said she did not like it and it was inappropriate for her father to behave in that way. That is not much assistance in determining the context in which all of this occurred. Ms E referred to the fact for example that the reference to “vagina” or “bottom” could have different meanings and whether the child saw what occurred as part of a game or something different. I return below to the evidence of the maternal grandmother to give some context.
Ms E also said that it was important to find out whether the child was uncomfortable and X certainly indicated in her subsequent interview with the authorities that she was. However, as Ms E observed we only get “a little slice” of the full story.
Ms E advised that parents find it difficult to suspend their risk or belief because by nature, adults are risk averse. If a child cannot give the context, the adult interprets in the most simplistic way what the child is saying and then the parent jumps to the conclusion from their own interpretation of risk. In the case of someone with Borderline Personality Disorder, that problem is exacerbated.
Normally, Ms E said, parents should contact each other to obtain that context and fill in the gaps fully. That that did not happen nor is it likely to happen for some time having regard to the views that each of the parents, and the extended family, have about each other. In respect of the parents, the issue is far more complicated here because of the mother’s mental health issues. Ms E referred to the mother’s anxiety which adds a level of complexity in relation to the increased risk because of the negative way she looked at the world. Indeed, as Ms E observed, the mental health issues here may very well be the cause of the anxiety and in her view, therapy was the only hope for change.
In respect of the incident involving the father in July 2018, Ms E opined that the normal reaction of a child like X was to look at the adult’s face to see the reaction and in this case, that was looking at her grandmother. . She said in respect of Z, that was also what was happening.
Ms E’s view was that what should occur was that the adult should walk away and then return later. She opined that the child will respond according to how the parent received the message, oblique as it may have been. For example, if there was a look of horror on the parent’s face, a child reacts by feeling that she has done something wrong but on the other hand if the adult was calm and interested, wanting more information, the child becomes a willing participant. Context can then be clarified.
Ms E stressed that this is not about children lying or telling the truth but rather about the context in which the issue arose. She said that children observe the body language of adults and they will respond to what they see or hear.
In simple terms, Ms E said that what the child was doing was reacting to the parent or authoritative figure thinking that they were uncertain as to what the adult or authoritative figure wanted them to say. She conceded, that that varies according to age. As she said, executive thinking did not come into a child’s make-up until about the age of 15 or 16 years and until then it was a question of survival skill because it was all black and white thinking.
When Ms E was pressed to give an explanation as to what had happened at the W’s birthday incident, her response was that she would look at the emotional reaction or response in X.
The context of X’s description here was that although the maternal grandmother was calm, and accepting that there was no interrogation of X, what she witnessed was the two children having the joke and then X lunging at the vaginal area and tickling it and the grandmother then saying that X’s conduct was inappropriate. That gives the context to which Ms E was referring. The child in Ms E’s eyes would therefore be thinking that based on the adult’s reaction she had done something wrong. The child would look for an explanation as to why people of an adult or authority figure had so reacted and would respond to avoid trouble.
Ms E said it was also noticeable that there was no anxiety shown in X when she was with her father and only days after the July incident, officers of the Department of Health and Human Services saw no context or information that would enable them to think that this was sexually inappropriate on the part of the father.
Accordingly, and accepting that Ms E’s evidence was unchallenged and certainly of an expert nature, it is conceivable that what she described was exactly how X, and indeed the other children, reacted when issues of impropriety have been raised. Accordingly, in respect of the two major incidents, I conclude that it is unlikely that the incidents in relation to the grandparents occurred how they did, notwithstanding that the children now have a view that they are unsafe in the grandparents’ care. I can be confident that in respect of the father, the context satisfies me that the incident did not occur as described by the child.
Ms E’s view about contact
Ms E’s evidence went on to address the issue of both time with the father and time with the paternal grandparents. In respect of the father, Ms E’s advice was that the father needed to be conscious of how Z reacted and how she could “ramp up” but that that related to the security issues to which I have referred above. Ms E said that the children should not be allowed to decide what was to happen and that is advice inconsistent with the view of at least the paternal grandfather. In my view, Ms E’s evidence should be accepted as it was from long experience and sound research.
Importantly, Ms E said that the father needed to be flexible about any distress in the children. This was a subject that I raised with the father in cross-examination. When he was pressed as to how he would handle the children if they wanted to return to their mother, he evaded the issue by simply indicating he would manage. Ms E’s evidence was that he needed to be flexible not only for his own peace of mind and management but also because of the problems associated with the anxiety of the children in returning to a state of fear of abandonment from their mother if they could not return to her. In Ms E’s view, all of this could be addressed in an intensive therapy program.
Re-introduction to the grandparents
In relation to the reintroduction of the children to the paternal grandparents, <s E’s evidence was very clear. The grandparents were neither positive or negative in the eyes of the children and therefore a slow introduction by the father through a therapy program including such things as genograms and photographs was the way to progress. Fundamentally, the father needed to first establish his relationship for the reasons already outlined in the evidence of Ms E earlier.
Ms E was of the view that the children would be positive about the paternal grandparents if they saw their mother positive about them in their lives. Undoubtedly, that cannot happen at the moment having regard to the views held by the mother in the maternal family. If this issue is not resolved, the children will live in a parallel world. That must apply to the maternal grandparents as well because if they do not accept that there is a role for the paternal grandparents in the future, there is a potential for secrets to become the norm but also for the children to be conflicted as to whether or not they can speak about their experiences in the father’s household.
Ms E was asked whether or not the children had a genuine belief about the risk associated with the grandparents and she indicated that she thought they had. She then opined that belief systems did not change and as such, views held by the children about their hair being cut by the grandmother were understandable.
In respect of the mother, Ms E said that there needed to be structure and stability in the lives of the children which could only overcome the sense of potential abandonment.
I accept the evidence of Ms E and accordingly have adopted a cautious approach in respect of the build-up of the time with the father as well as accepted the proposals of all parties to return to the therapy model.
Unacceptable risk
Having determined the issue of risk of harm to the children in the care of the father and found that risk of physical harm did not exist, it is unnecessary for me to revisit that issue. However, harm must include psychological harm. In this case, any harm to the children must be looked at in two contexts. The first relates to emotional or psychological harm to the children if the time element is pushed too quickly and too extensively. The second relates to the reintroduction of the paternal grandparents. Having satisfied myself that there is not a physical risk (as urged by the Independent Children’s Lawyer), I turn to the issue of emotional or psychological harm.
In both cases, the evidence of Ms E has been accepted. In essence, the mother’s mental health means the state of anxiety is high when the children are not in her control. The separation from her has the potential to give rise to anxiety and feelings of abandonment in the children. These are issues that the parties agree will be addressed in therapy but in the meantime, I accept the evidence of Ms E that in respect of the father, the Court should move slowly and in respect of the grandparents, the initial settling of the parental relationship is more critical. If the grandparents are inserted into the relationship too quickly, the hyper-vigilant response of the mother (and the maternal family) may have the impact of creating heightened anxiety for the children. All of that must be seen as the psychological manifestation of the problems of drawing orders that are in the best interests of the children.
Before dealing with the solution which both parents seem to agree is reflective of those philosophical concepts, it is important to see how the law and social science work in their own ways but also in tandem.
Unacceptable risk of harm must be examined in the context of the proposed orders of the parties and the court. That is, is there a risk of harm to a child of the type contemplated by s 60CC(2)(b) of the Act? That provision which is a mandatory consideration says (when assessing best interest principles) that it is a primary consideration for the court to consider:
….the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Whilst “abuse” is defined in s 4 of the Act, “neglect” is not but it must mean carelessness (or in a parenting context, a lack of care) or a lack of foresight. In simple terms, responsible parents would not make decisions that are careless or the consequences for which cause a psychological or emotional distress for their children.
Ms E’s evidence points to the dilemma here where the mother has the problems associated with borderline personality disorder and the children have anxieties about being abandoned. In respect of time with the father, there is a risk of harm in that sense if the care he can provide is pressed too quickly. Thus, even though the parents have agreed to basic time, Ms E’s evidence is that the father needs to be conscious of the children’s potential distress.
So too, the re-introduction of the paternal grandparents can have those consequences for these children who have no sense of a positive feeling about them. To know, as they must, that their mother and maternal grandparents do not trust the paternal grandparents and have strong beliefs that those adults are dangerous for them will mean that putting them into contact with the grandparents after all that has happened is likely to create anxiety for the risk-averse mother which will have a flow-on effect for the children.
Much of this is not much short of crystal ball-gazing but it is in the context of the evidence of a very experienced child psychologist whose evidence has been accepted.
The question for the Court is whether the risks that the parties have agreed to take should be so ordered. The question also must be asked whether the risk submitted by the Independent Children’s Lawyer in relation to the paternal grandparents should be taken. From the social scientist’s perspective the answers will be evident from what I have set out above. From the Court’s perspective, the law is clear.
The test of “unacceptable risk” was set out in M v M (1988) 166 CLR 69, at 78, where the High Court (Mason CJ, Brennan, Dawson, Toohey & Gaudron JJ) described the exercise as striving to achieve a balance between “the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access”. Their Honours observed that 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.”
Section 60CC(2A) provides that if there is a conflict between the children having a meaningful relationship with both parents and the protection from harm, the latter must be given greater weight. The meaningful relationship provision relates to parents as distinct from grandparents but s 60CC (3) requires the courts to consider the nature of relationships with grandparents. Section 60B provides, as an object, that children have a right to spend time on a regular basis with other people significant to their care, welfare and development and it includes the phrase “such as grandparents”. Thus, although s 60CC(2A) refers to the meaningful relationship between parents and children, I consider that s 60CC (3) and s 60B make clear that children have a right to contact with their grandparents but that must be subject to the protection of the harm earlier mentioned.
The test of whether a risk is unacceptable is the “touchstone for inquiry” in sexual abuse and similar cases, including assessments of risk of future physical and emotional harm (see In the Marriage of A (1998) FLC 92-800). Thus, whether parents have a consensual arrangement or not, a court should cautiously consider risk taking into account under s 60CC (2A). But, these assessments are all about what is possible.
In Malec v J C Hutton Pty Ltd [1990] HCA20; (1990) 169 CLR 638, the majority in the High Court said of possibilities:
The future may be predicted and the hypothetical may be conjectured. But questions as to the future or hypothetical effect of physical injury or degeneration are not commonly susceptible of scientific demonstration or proof. If the law is to take account of future or hypothetical events in assessing damages, it can only do so in terms of the degree of probability of those events occurring. The probability may be very high - 99.9 per cent - or very low - 0.1 per cent. But unless the chance is so low as to be regarded as speculative - say less than 1 per cent - or so high as to be practically certain - say over 99 per cent - the court will take that chance into account in assessing the damages. Where proof is necessarily unattainable, it would be unfair to treat as certain a prediction which has a 51 per cent probability of occurring, but to ignore altogether a prediction which has a 49 per cent probability of occurring. Thus, the court assesses the degree of probability that an event would have occurred, or might occur, and adjusts its award of damages to reflect the degree of probability.
There must therefore be an identification of the risk and an assessment as to its magnitude (see Deiter & Deiter [2011] FamCAFC 82). In In The Marriage of N and S (1995) 19 Fam LR 837; (1996) FLC 92-655, Fogarty J said (at 82,713-4):
Thus, the essential importance of the unacceptable risk question as I see it is in its direction to judges to give real and substantial consideration to the facts of the case, and to decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm to the child. Thus, the value of the expression is not in a magical provision of an appropriate standard, but in its direction to judges to consider deeply where the facts of a particular case fall, and to explain adequately their findings in this regard.
Some of the questions that have been asked include:
(1)What harmful outcome is potentially present in this situation?
(2)What is the probability of this outcome coming about?
(3)What risks are probable in this situation in the short, medium and long term?
(4)What are the factors that could increase or decrease the risk that is probable?
(5)What measures are available whose deployment could mitigate the risks that are probable?
(see ‘Psychiatric Risk Assessment in Child and Family Law’ (2008) 38 Family Law 569.)
The evidence of Ms E provides the answers to all of those questions and it is important to note here that both parents have agreed to a set of arrangements that pick up her opinions albeit they do not necessarily agree on the same things. The Court should follow that expert advice.
I find in the circumstances that there is an unacceptable risk of psychological harm in any proposal that would see the immediate re-introduction of the children to their paternal grandparents for the reasons set out by Ms E. That determination is not an easy one for the grandparents on either side having regard to the fact that the mother’s “side” wanted substantially greater restrictions than the father. However, I adopt what counsel for the Independent Children’s Lawyer submitted which is that it is not the Court’s function to sympathise with those grandparents. So too, the maternal grandparents will have great difficulties and anxieties about any contact with the paternal grandparents because they believe that the children do not lie; they have no doubt about the sexual and other improprieties having been committed. Their strongly articulated belief is that the system, which includes the State welfare authorities, has failed the children. It is not the function of the court to simply adopt what they think either but rather to consider all of the questions to which I have referred.
I find the risk is unacceptable but the parties and more particularly the father, have come up with answers raised by questions (4) and (5) above which satisfy me that the relevant risks will eventually be ameliorated.
The orders set out contemporaneously with these reasons address all of those concerns.
I turn then to the vexed dispute about parental responsibility. This issue is about major long-term issues not those of a day to day nature.
Parental responsibility
The Court in making a parenting order must apply a statutory presumption that it is in the best interests of the children for their parents to have equal shared parental responsibility.
The statutory presumption is rebuttable in two circumstances, s 61DA(2) and s 61DA(4). In respect of the former, the parties agree that despite what might have been the situation at separation, there are no family violence factors now that would justify the rebuttal of the presumption. I have accepted their view.
In respect of s 61DA(4), the Court needs to examine the best interests’ principles below in the context of what each party seeks.
The father sought equal shared parental responsibility whilst the mother sought to have sole responsibility. It is common ground that there has been limited, if any, communication between the parents for years. As I earlier mentioned, the immediate post-separation communication was between the father and the maternal grandmother. Her evidence makes clear that she has no respect for the father. The maternal grandfather was a little more accommodating but in respect of the critical question, the post December 2018 evidence shows that the parties can at least be civil towards each other in the presence of their children.
Until very recently, the father has not taken any position in relation to major decisions but that approach appears to have changed. In respect of parenting of children, it is not appropriate to ignore a change like that when the interests of children are relevant. Ms E’s evidence showed that she perceived a change in the father in the few months between her first and second observations. The evidence of the father and Ms K about how well things went over the summer holidays indicates that the father has changed his focus from anger and dissatisfaction to one of wanting to be involved significantly in the lives of the children.
The mother’s position was fundamentally that there was no communication and a lot of mistrust. I think that may change with therapy and as the father has shown a significant change of attitude, he should be permitted to be involved in the decisions rather than just being given some peripheral role. In the mother’s final minute of proposed orders, she said that the order should be that prior to making any decision, she consult with the father and seek his views and then ultimately make the decision. If she can be compelled by order to consult, the provisions of s 65DAC are being met. The dilemma arises where there is a hiatus or stand-off such that decisions about children are not made and they are consequently disadvantaged. Those can easily be imagined in respect of schooling and health but not much otherwise. The father has always deferred to the mother and I suspect that once he accepts that she has the interests of the children as her priority, communication will be easier.
It is also important to recognise that this responsibility does not apply to all decisions as “Major long-term issues” is defined in s 4 as:
major long-term issues, in relation to a child, means issues about the care, welfare and development of the child of a long-term nature and includes (but is not limited to) issues of that nature about:
(a)the child’s education (both current and future);
(b)the child’s religious and cultural upbringing; and
(c)the child’s health
(d)the child’s name;
(e)changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.
Making those decisions requires discussion albeit they do not happen a lot. They require a joint approach of a consultative nature; consultation and genuine effort are required by law to reach a decision (s 65DAC).
The issue about religion has already been mentioned but it may arise with a cross-over about whether the children will go to a private secondary school. It is not the function of the Court to intervene here but rather to determine (if necessary) who should be making education decisions. I find it likely that the father will be co-operative based on the submissions of his counsel and based on the past history. It goes without saying that if things continue on the path now evident, the children will spend the bulk of their time in the mother’s care and that is usually the basis for the attendance at a school. I was told by the father’s counsel there was no issue of attendance at religious observations and the evidence did not show (and the father was not asked about) any philosophical objection to a religious upbringing. In my view, if the mother’s concern about sharing parental responsibility is based on that concern, the matter can come back to court in the future if the problem arises. Similarly, if she is concerned about past lack of communication, that issue will soon be apparent and can be placed on the therapy agenda.
I find in the circumstances that the evidence supports an order for equal shared parental responsibility but also that the best interests principles indicate that the presumption should not be rebutted. It is unnecessary for me to consider
s 65DAA as the parties agreed it was not relevant.
Best interests’ principles
In every case where parenting orders are being considered, the court is obliged to contemplate the best interests’ principles as being of paramount importance. The court is referred to s 60CC to make that determination but in this case, only certain provisions need be discussed as I have otherwise canvassed a lot of the questions earlier in these reasons.
To the extent that any of the s 60CC(3) factors are relevant, the following are findings.
For the purposes of s 60CC(3)(a), (b), and (c), I find that the children want a relationship with their father. Their views were made clear in the recent visits and also as outlined by Ms E. To the extent that they are too young to have a strong say in what relationship it should be, I am conscious of the evidence of Ms E that the children should be told what to do rather than to allow them to control what happens.
I do however, take into account their different views but all of those must be seen in the unusual circumstances of the mother’s mental health issues and their own anxieties. That said, the parties have largely agreed on a regime albeit I am determining the finer points.
Ms E was of the view that a relationship was important for these children. The orders should therefore follow.
For the purposes of s 60CC(3)(e), there are no practical difficulties in implementing orders.
Orders
I have considered the proposals of each party and adjusted times taking into account the expert evidence of Ms E about the need to give stability to the children. That requires that they not be put in the position where they feel abandoned by their mother in circumstances where they crave her attention and attachment. Similarly, I have rejected the position of the Independent Children’s Lawyer in relation to the grandparents intending that their role and importance in the lives of these children be secondary to the development and enhancement of the relationship with the father.
I have rejected the mother’s proposed orders in relation to “appropriate beds” on the basis that I have sufficient confidence in the father to provide for the physical needs of the children and that the terminology used by the mother is not only subjective but bordering on meaningless.
The mother also proposed that the children be at liberty to telephone the other parent at any reasonable time they request. It is not appropriate for the children to be given that responsibility. Ms E indicated clearly in her evidence that children should be told what to do and parents exercise their responsibilities determined by the circumstances that then prevail. As Ms E warned, if the children became distressed, the father might need to have a plan as to how he dealt with that to avoid the exacerbation of the abandonment and future resistance to any relationship with him occurring.
I have also rejected the proposed order that both parents follow all reasonable recommendations and directions of various professionals. Apart from the subjectivity of the language, the responsibility for decisions about what is right for children must ultimately rest with the parents albeit after advice from those professionals. If a professional makes a recommendation with which one or both parents disagree, the parents have the right to make the determination as they have to care for the children. If the rejection of the advice is contrary to the welfare of the children, the state, through its welfare department, has an opportunity to step in if there is a risk of harm the children. On the other hand, having made an order for equal shared parental responsibility, if the parents disagree amongst themselves as to what is the appropriate decision relating to the advice of the health professionals, they can come back to a court which would then most likely assess whether one parent should have the determination responsibility depending upon how sensible those parents have been in relation to the interests of the children.
Both parents have indicated that they will attend upon Ms J whose practice is in the same facility as that of Ms E. Ms E has great confidence in Ms J. The parties have indicated that in the event that there are problems, they will seek out Ms E.
I have made orders for the father to attend some courses albeit there appears to be a suggestion of reluctance on his part. In my view, it is in the best interests of these children that he have as much information as possible bearing in mind the paucity of responsibility he has had to date. I am comforted by the fact that he has a partner who has all the appearance of parental responsibility and sensibility in respect of her own children but that relationship is still relatively new and there are health difficulties for at least one of her children. The father needs to get as much information and assistance as he can from professionals.
I have also declined to make an order that the father attend upon a step-family course notwithstanding he needs as much information as possible, as I consider that is an intrusion that the court should not countenance. The father either wants to be a significant participation in the care and decision-making for these children or he does not. His relationship with Ms K is an entirely different thing but she is to have a significant role and therefore they need a combined approach to the parenting of the children.
To the extent that it is possible, Ms K and the mother need to find a form of communication as both will have significant roles in these children’s lives.
As can be seen also, I have declined to permit the father to use the report of Dr F with health professionals. It is the court that makes a determination based on evidence. Evidence which is not challenged may still not necessarily be evidence accepted by the court. In this case, I have not had the advantage of hearing that evidence tested and accordingly, my view is that to use that evidence with health professionals tends to suggest that it has the imprimatur of the court. It is only one factor or facet of this particular case.
I have also declined to permit these reasons for judgment to be simply used as the parties see fit. That applies to both parents even though there is consensus about that use. The parents have to work out what sort of a relationship they are going to have with the health professionals and the reasons for judgment can cloud some of those discussions. If the health professionals feel there is a need for access, an application can be made and a registrar can deal with the matter.
The mother sought an order that both parents be authorised to attend any activities ordinarily attended by parents of school as well as receive information. The order I have made for equal shared parental responsibility obviates the necessity for that order. The same applies in respect of extra-curricular activities. Notwithstanding the father has specific times where he is responsible for the care of the children, there is no reason why he cannot attend activities of the children notwithstanding he does not have a specific time. However, if he was to interfere with the time of the mother in so doing, he needs to understand that it would be inappropriate for him to act in that way. The orders of the court effectively give the parents responsibility for the care of the children at specific times and attendances at extra-curricular activities need to be cautiously handled where the parties do not communicate. If the father’s attendance borders on a removal of that responsibility of the mother, an appropriate injunction could be sought on evidence based information if it was to occur persistently.
I have also declined to make orders of an injunctive nature which use language such as “exposing the children to family violence” and for the parents to use or be affected by “non-prescribed or illicit substances or excessive use of alcohol” on the basis that in respect of drug usage and family violence, such activities are anathema to good parenting. It is an irresponsible parent who uses illicit drugs or non-prescribed drugs or becomes affected by alcohol to the extent that they cannot properly care for a child. Rather than anticipate such activities even with the background of these parties, I intend that such orders shall only be made if history begins to repeat itself. Rather than make such an almost unenforceable order, in my view it is better for the court to revisit the situation and remove the children from the care of the person who is acting irresponsibly at that time.
As will be apparent when the respective minutes of proposed orders are compared, it will be self-evident that I have adopted a policy of having the court only interfere in circumstances where it is necessary as it is not the function of the court to micromanage the lives of children. At some point, the parents have to take on that responsibility and in my view, the orders that I have made give effect to that principle. The orders are therefore in the best interests of these children.
I propose to discharge the Independent Children’s Lawyer from the proceedings in April as seems to have been agreed and otherwise to dismiss all outstanding proceedings on the basis that there is nothing further for the court to do.
I certify that the preceding one hundred and fifty-six (156) paragraphs are ah true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 19 February 2019.
Associate:
Date: 19 February 2019
Key Legal Topics
Areas of Law
-
Family Law
Legal Concepts
-
Injunction
-
Procedural Fairness
-
Remedies
0
3
1