Sorelli & Anor and Strange & Anor
[2012] FamCA 1049
•5 December 2012
FAMILY COURT OF AUSTRALIA
| SORELLI AND ANOR & STRANGE AND ANOR | [2012] FamCA 1049 |
| FAMILY LAW – CHILDREN – With whom a child lives – with whom a child spends time – with whom a child communicates – Interim Orders that children live with the applicants and spend time with the applicant mother and second respondent |
| Family Law Act 1975 (Cth) ss 60CC, 61DA and 61DA(3) |
| Lindsey & Baker [2007] FamCA 1037 |
| FIRST APPLICANT: | Ms Sorelli |
| SECOND APPLICANT: | Mr A |
| FIRST RESPONDENT: | Ms Strange |
| SECOND RESPONDENT: | Mr B |
| INDEPENDENT CHILDREN’S LAWYER: |
| FILE NUMBER: | HBC | 476 | of | 2011 |
| DATE DELIVERED: | 5 December 2012 |
| PLACE DELIVERED: | Hobart |
| PLACE HEARD: | Hobart |
| JUDGMENT OF: | Benjamin J |
| HEARING DATE: | 5 December 2012 |
REPRESENTATION
| COUNSEL FOR THE FIRST APPLICANT: | Mr Munro |
| SOLICITOR FOR THE FIRST APPLICANT: | Munro & Associates |
| COUNSEL FOR THE SECOND APPLICANT: | Mr Munro |
SOLICITOR FOR THE SECOND APPLICANT: | Munro & Associates |
| COUNSEL FOR THE FIRST RESPONDENT: | Ms K. Mooney |
SOLICITOR FOR THE FIRST RESPONDENT: | FitzGerald & Browne |
COUNSEL FOR THE SECOND RESPONDENT: | In person |
| SOLICITOR FOR THE SECOND RESPONDENT: |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Fitzgerald |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid Commission of Tasmania |
Orders
All previous parenting orders are discharged.
IT IS NOTED
That the presumption of equal shared parental responsibility does not apply.
Until further order, parental responsibility for the children C born … November 2006 and D born … September 2008 (“the children”) be allocated to Mr A and Ms Strange (“the Applicants”), provided that:
(a) they will not make any decisions surrounding the long term care, welfare and development of either child without communicating, in writing, any proposed decision and in the event the mother and/or father responds that they will genuinely consult with the mother and father and inform the Independent Children’s Lawyer;
(b) all entities relevant to long term issues such as schools, medical centres and the like will note the Applicants as persons who have parental responsibility for all medical and other health issues;
(c) leave be granted for the Applicants to enrol the children a school at E School commencing the 2013 school year, but they are directed to leave the children enrolled in their present schools for the remainder of the 2012 school year.
Until further order the children live with the Applicants.
That until further order the children spend time with and communicate with the mother as agreed in writing between the parties or via text messages and failing agreement as follows:-
(a) each alternate weekend for a period of six (6) hours on one day in the weekend; and
(b) upon commencement of school holidays, two days each week for a period of three (3) hours.
BY CONSENT THAT
The children spend time with D’s father each alternate Friday through Sunday thereafter to occur at the paternal grandmother’s residence or the Applicants’ residence or such other times as is agreed in writing between the parties including the Independent Children’s Lawyer.
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.
For the purposes of the spend time with arrangement the mother will engage and/or maintain mental health professional assistance to address the matters identified in the Court Expert’s Report and to that extent the mother have leave to provide to that mental health professional a copy of the Court Expert’s Report and her own affidavit.
Pursuant to Section 65L a Family Counsellor is requested to assist the parties and the children to understand the nature of this order and for the purposes of compliance with these orders to ease the transition of the children into the Applicants’ care and the Applicants will obey any reasonable directions by the Family Counsellor.
10. The children shall be collected by the Applicants from outside the F School at 3pm on Thursday, 6 December 2012, and in the event that the mother fails deliver the children to the school and arrange for them to be present, a Recovery Order issue directing the Australian Federal Police to collect the children and to give them to the Applicants.
11. That the Independent Children’s Lawyer have leave to provide to that mental health professional a copy of the s 69ZW Report.
12. That the parties be restrained from removing the children from the State of Tasmania or the Commonwealth of Australia and to that extent the children continue to be on the watch list.
13. The parties, including the applicants, the mother and D’s father are restrained from initiating or continuing a conversation with the child or children regarding allegations of sexual or physical abuse and in the event that the children, or either of them, make any such disclosure, such disclosure be reported immediately to the Independent Children’s Lawyer and Child Protection Authorities.
IT IS DIRECTED
14. A copy of the mother’s affidavit, the affidavit of Ms G filed 30 November 2012 and the affidavits of both of the applicants filed 27 November 2012 be forwarded to the Department of Health and Human Services by the Independent Children’s Lawyer within seven (7) days.
15. A copy of these orders be forwarded by the Independent Children’s Lawyer to the Department of Health and Human Services within seven (7) days of issue.
16. The mother shall file, within twenty-eight (28) days of the date of this order, an application as to why C’s father ought not to be a party to these proceedings, together with an affidavit in support.
17. If no application is made within that time, the mother must inform the Independent Children’s Lawyer of the full name of the child’s father and the address of the child’s paternal grandmother and forward to the child’s father, care of that address by ordinary pre-paid post, a copy of the applications and the orders with a letter setting out that he may be the father of the child and inviting him to intervene in the proceedings if he wishes to.
IT IS FURTHER ORDERED
18. The parties have leave to have the matter re-listed before his Honour Justice Benjamin on the giving of 24 hours notice if the children are not handed over in accordance with these orders.
19. The parties have leave to have the matter restored before his Honour Justice Benjamin on seven (7) days notice.
IT IS DIRECTED
20. The applicants arrange for therapeutic counselling for the children with a counsellor approved by the Independent Children’s Lawyer after consultation with D’s father and her mother.
IT IS NOTED
21. The file of that counsellor, and that counsellor cannot be required to provide reports or be required to attend Court without an order of this Court, or a Court exercising jurisdiction under the Family Law Act 1975 (Cth) giving leave to that extent.
IT IS FURTHER ORDERED
22. The matter be listed for a Less Adversarial Trial on a date to be fixed.
IT IS NOTED
23. The Associate to his Honour Justice Benjamin will provide a date for a hearing time in either February or March 2013 to the parties.
IT IS CERTIFIED
24. Pursuant to Rule 19.50 of the Family Law Rules2004 (Cth) it was reasonable to engage counsel to attend.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Sorelli and Anor & Strange and Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT HOBART |
FILE NUMBER: HBC 476 of 2011
| Ms Sorelli |
First Applicant
| Mr A |
Second Applicant
And
| Ms Strange |
First Respondent
| Mr B |
Second Respondent
REASONS FOR JUDGMENT
INTRODUCTION
These are interim parenting proceedings between Ms Sorelli and Mr A, who are the applicants and Ms Strange (‘the mother’) and Mr B , who are the respondents. The proceedings relate to interim parenting arrangements with regard to C, who is aged six and D, who is aged four. The mother is the mother of both of the children and Mr B, the father, is the father of D (“D’s father”). The father of C has not been joined in the proceedings and until recently, his name was not known to the applicants or to D’s father. I intend to direct the mother to file an application in respect of excluding C’s father from the proceedings and the application and affidavit should be filed within 28 days.
Otherwise, I will direct the mother to inform the Independent Children’s Lawyer of the address of C’s paternal grandmother, so that material can be forwarded to the father and he can be joined in these proceedings. That is not an issue which I need to deal with today. The applicants describe themselves as the mother’s foster parents or the foster grandparents of the two children. They are not directly related to the children but have had significant involvement in their lives for all of the children’s lives. The mother was cared for by the applicants in her mid-teens and the applicants have been a source of support for her since that time and up to the current time.
These proceedings have been in the Federal Magistrates Court since about June 2011 and were brought by the applicants out of their concern for the care of these two children. D’s father has attended Court today; he has not filed any documents, nor has he filed any affidavits. He says that he wishes to spend the same time with both children each second weekend, as he is currently spending and generally supports the application of the applicants. To the best of my ability, I endeavoured to explain the process to him and enable him to engage in the process. He raises no issues which need to be determined today.
THE ISSUES
The issue which needs to be determined today is whether the children live primarily with the applicants or whether the children live primarily with the mother. An independent children’s lawyer was appointed to these proceedings in the Federal Magistrates Court and has proposed orders set out in an aide-mémoire. It is of value to note that orders 1, 6, 7 and 8 are agreed and I will make those by consent. Order 11 is agreed insofar as it is amended to provide that each of the parties are restrained from initiating or continuing conversations and I will put those orders in place.
It is also agreed that if I determine that the children live with the applicants, then the handover ought to be after school tomorrow. The applicants relied upon an affidavit of each of them, filed 27 November 2012, a report prepared by the Department of Health and Human Services and a report prepared by Dr H. The mother relied upon an affidavit by herself and an affidavit by Ms G. The Independent Children’s Lawyer relied upon the report of Dr H and the report from the Department of Health and Human Services, dated 23 November 2012.
There have been a series of orders made in the Federal Magistrates Court, commencing in June 2011, when the applicants were concerned that the mother was proposing to move to New Zealand with the children in circumstances where they asserted that she may have difficulty caring for them. Interim orders were made in August 2011and March 2012. The March 2012 orders provide for equal shared parental responsibility between D’s father, the applicants and the mother, that the children live with the mother and spend significant time with those other people.
A single expert was appointed in May 2012 and these proceedings were transferred to the Family Court in September 2012. The mother suffered an illness in October 2012, the consequence of which was that she was voluntarily admitted to hospital and the children were placed in the care of the applicants in those proceedings in late October 2012, where they remained until very recent times. The orders in the state proceedings expired and it appears that it may be that the state authorities were of the view that the children were safe in the care of the applicants.
The case of the Independent Children’s Lawyer, is substantially supported by the applicants, which is:-
(a)that parental responsibility vest in the applicants;
(b)the children live with the applicants and they spend time with and communicate with the mother each alternate weekend for a period of six hours and upon the commencement of school holidays, two days each week for a period of three hours;
(c)that a family counsellor is requested to assist the parties in understanding the nature of orders by way of an order under s 65L; and
(d)that the children be placed in the care of the applicants tomorrow; and
(e)that the Independent Children’s Lawyer have leave to provide a mental health report and some other orders, including that the parties be restrained from removing the children from the state of Tasmania or the Commonwealth of Australia.
The mother’s case is that she has sole parental responsibility for the children, that the children live with her and spend time with D’s father from 5.00 pm Friday to 5.00 pm Sunday each alternate weekend with such time to be at the paternal grandmother’s residence or as otherwise agreed. There is no issue that the mother has had the significant care of the children since their birth and there is no issue that the applicants have provided and continue to provide support for the children. There was a period of time, of about six months, when the children did not see the applicant, arising out of some allegations to which I will refer to a little later.
However, since that time, the children have spent significant unsupervised time with the applicants. C does not know her father and it’s apparent that her father does not know her and the children have, in many ways, resided in two or three houses. C attends school at Suburb F. There is an agreement that if the children move, they ought to go to school close to Suburb E, but that should be next year not this year.
Serious allegations were made that Mr A had sexually abused C in or about November 2011. Those allegations were investigated by police, the Child Welfare Authorities and the single expert, Dr H. There are subsequent allegations from later this year that one or both children were sexually abused by Mr A. The mother says as a consequence that at least there ought to be an order that the children not be left alone with him and that the children are better off in her care, as there is a risk with regard to that applicant.
That is one issue which will need to be dealt with at the final hearing. There is an issue that the mother has coached the children, or at least C, to make those accusations in a false way and that at least C is at risk of abuse as a consequence of that alleged coaching by the mother. In the past, the mother has struggled, it appears, with the care of D and it appears that she has a strong relationship with C. There is an issue as to whether that relationship is an appropriate relationship, one of a parent and child or whether the relationship is more as friends.
Each of the parties were lined up with their affidavits. Dr H prepared an expert report and I note at the start that this report is significantly challenged by the mother in a number of factors. Firstly, the mother says the report is based on facts, which are untrue and, therefore, unreliable. Secondly, that the methodology used by the Dr H in a number of areas is flawed as such that the Court is not able to rely upon this expert, who, it seems, is conceded as a well known and well regarded expert.
The Report was dated 24 July 2012 (‘the Report’) and I am conscious, and I repeat, that the material in that report is untested and is based upon the facts which may or may not be accurate. Dr H examined significant documents and significant reports at a clinical interview with the parties and with the children, as set out on page 3 of the report. The report is, to say the least, scathing of the mother. Some of the material upon which the reporter relied was material which Mrs Mooney said Dr H ought not to have.
Dr H raised some questions about the mother’s ability to parent, particularly in paragraph 6 of her report, as to whether having regard to the past her inability to cope with the children from time to time is likely to continue. Dr H makes some comment about the mother’s employment and I repeat what I said during the course of the hearing that I am not concerned about the mother’s employment or if that is her employment or if it was her employment.
What I am concerned about, however, is the comments made by Dr H in paragraph 69 where she said it appears that the mother has difficulties with boundaries and acknowledged her work to encroach into the home where the children were exposed to knowledge of sexually inappropriate material. Dr H said:-
9. [The mother] prevented the children from seeing [Ms Sorelli] and [Mr A] for a period of time, but “out of the blue” resumed making regular requests for the children to stay with [Ms Sorelli] and [Mr A]. As a preventative measure, the Court ordered that the children should not spend time alone with [Mr A].
10. In order to thoroughly assess the Terms of Reference, [the mother’s] personality, mental health and attitudes to parenting were assessed using two psychometric assessment tools. The selected tools were the Personality Assessment Inventory [PAI] (Morey, 1991) and the Parenting Stress Index – Third Edition [PSI] (Abidin, 1995). These tools were selected given their internationally recognised validity in forensic settings. These tools were considered appropriate given the issues raised for assessment in the Terms of Reference regarding [the mother]. Both assessments were undertaken at ForensiClinic under the supervision of my associate Dr I (Clinical Psychologist).
…
14. [The mother’s] test results on the PAI were indicative of a valid profile. The profile was not consistent with the diagnosis of a current major mental illness. However, the experience of deliberate self-harm, the past use of a broad range of illicit drugs, and episodic depressive symptoms were acknowledged by [The mother]. She also acknowledged the experience of suicidal ideation in her teenage years. There was also indication of problematic personality traits of the antisocial and borderline kind. These results are consistent with my clinical observations.
…
19. [The mother’s] test results on the PSI reflect a valid profile not indicative of defensive responding. The profile is dominated by extremely high ratings on all of the child domain subscales; significant elevations on one of the parent domain subscales (spouse – lack of support); and extremely high Life Stress and Total Stress scores. The profile reflects a Parent-Child system that is in crisis. The test results reflect [the mother’s] perceptions that [D] is a severely behaviourally disturbed child who places extreme demands on her as a parent, and that her son displays many characteristics that do not match the expectations she has as a parent. This profile is indicative of problems with attachment between mother and son. The profile is also indicative of the experience of mild-moderate symptoms of depression, which at times may impair [the mother’s] ability to handle her parenting responsibilities. The problems typically associated with this level of depression include complaints of loss of energy and lack of follow-through in limit-setting and discipline. The significant score elevations are detailed in Table 1.
Table 1
PSI subscale percentiles 85 or greater
PSI Subscale Percentile Scale Description CHILD DOMAIN 99+ High scores reflect the parent’s perception of a child who displays qualities that make it difficult for them to fulfil their parenting role Distractibility/
Hyperactivity85 High scores reflect the parent’s perception of the child displaying behaviours associated with attention deficit and hyperactivity Adaptability 99+ High scores reflect the parent’s perception of the child having difficulty with adjusting to change in their physical/social environment Reinforces Parent 95 High scores indicate acknowledgement by the parent that interactions with their child fail to produce good feelings about himself or herself, which may threaten the parent-child bond Demandingness 95 High scores reflect the parent’s perception of the child as placing too many demands upon him or her Mood 95 High scores reflect the parent’s perception of the child as experiencing negative mood states Acceptability 95 High scores reflect the parent’s perception of the child as having characteristics that do match the expectations they had for their child (e.g., intelligence, attractiveness) PARENT DOMAIN High scores reflect the parent’s perception of their own parental functioning as negatively impacting on the parent-child system Spouse 90 High scores reflect that the parent feels a lack of emotional and active support from their spouse in the area of child management LIFE STRESS 99+ High scores reflect a high level of life stress perceived by the parent outside the parent-child relationship TOTAL STRESS 90 High scores reflect a high level of life stress perceived by the parent in their daily functioning
20. [The mother] attended a clinical interview, and allowed me to attend her home to observe her with the children. It is clear that when motivated to do so, [the mother] can present as a mentally stable, competent parent. Her presentation during my assessments was not indicative of the current experience of major mental illness not a drug-affected state. However, [the mother’s] recent history has demonstrated that she has been an active drug user of numerous types of illicit drugs, which she acknowledged. She also acknowledged that she is vulnerable to periods of depression, and has been all her life. [The mother] also indicated that she still grieves the death of her mother from illness, when [The mother] was a teenager, and that she had experience of sexual abuse victimisation during her childhood.
21. [The mother] also described the shock and trauma of [D] accidentally hanging himself with the blind cord at her residence last year. She described that she had difficulty coping with this incident. The collateral information suggests that [the mother] attempted to cope by leaving avoiding the aftermath (e.g., leaving the hospital while [D] was receiving emergency care, and then going on a holiday and leaving the children for an extended period with [Ms Sorelli] and [Mr A].
22. The information presented to me clearly indicates that [the mother] has difficulty sustaining healthy relationships, and that even those family and friends who have been close to her have been hurt by her behaviour. There is also multi-source report of [the mother] fabricating stories to elicit sympathy from others (e.g., the death of her grandmother, which did not actually occur), and also a history of attempting to make allegations of sexual abuse (and trying to influence others to do so) for an instrumental purpose. [The mother] has difficulty with personal boundaries and displays a repeated pattern of taking advantage of the goodwill of others, with little if any regard for the impact on them. She appears to be strongly dependent in her relationships, and becomes attached very quickly (e.g., changing her surname to her new partner’s surname and planning marriage within weeks of dating). She appears to need a partner in her life all of the time, and seems to be unable to cope as a single woman.
23. [The mother] expresses stronger affection for [C] than [D], who she appears to find more challenging. [The mother] described [C] as “awesome, so smart, and adapts to any situation”. She described [D] as “a bit slow but nothing to worry about, frustrating, violent, difficult and I love him to death but…”. [The mother] stated that [D] is happier in the care of [Ms Sorelli] and [Mr A] than in her care, which hurts her feelings. [The mother] indicated that she had thought about giving [D] to [Ms Sorelli] and [Mr A] for care on a full time basis, and keeping [C]. She stated that the children would get used to being apart in time.
24. My observations are that she has been treating [C] more as a friend than a daughter, and having inappropriate conversations with her and in front of her about adult matters. This is further evidence of [the mother’s] difficulties in maintaining appropriate boundaries.
…
35. However, there was clear evidence that attempts were being made to undermine this by [the mother] during the assessment process, specifically in relation to [C], who noted to me on several occasions that “Mummy said that [Ms Sorelli] and [Mr A] are trying to steal me from her, and that you are going to decide if I have to live with [Ms Sorelli] and [Mr A] forever and ever and Mummy will never see me again”. She also indicated that she should be naughty during my assessment of her with [Ms Sorelli] and [Mr A], as her mother told her it would help for her to “live with Mummy”.
…38. It is noted at item 5 of the current Consent Orders (06/03/2012) that the children are not to spend any time alone with [Mr A]. I have not found evidence to support this restriction.
…
40. [C] presented as strikingly protective of her mother. During my assessment it was clear that she “policed” [D] regarding what he told me about their mother, and tried to stop him from expressing any negative views. She actually verbalised “when you talk to [D] I will be there to make sure he says the right things.” However, [D] asserted himself and let me know his true feelings. [C] continued to berate him stating “he is too little, he doesn’t know his words yet.”
41. [C] presented as an alert little girl, and was acutely aware of the interactions between adults around her. She had to be encouraged to “be a child” and play, rather than be involved in adult conversations.
…
47. Towards the end of the assessment process, I asked [C] “tell me about the time you went to talk to the Police.” [C] reported to me that what she had told the Police about [Mr A] was not true. At that time, I undertook a child forensic interviewing process in relation to this issue. For example, I reiterated the true/lie test with [C], and she was able to tell me that she knew what a lie is and what “true” is. [C] appeared sad and ashamed when she told me about the lie. Her body posture became withdrawn and closed, and her eye contact diminished. She told me that Mummy had told her what to say to the Police, and that she got coke and chocolates for doing it. She expressed that her mother told her that [Ms Sorelli] and [Mr A] were trying to steal her, and that if she said this to the Police she would be able to live with Mummy “forever and ever”. [C] stated that “[Mr A] has never done anything like that”. [C] then ended the conversation sadly and said “I really don’t want to talk about it.”
49. [D] presented as an inquisitive and playful young boy. He was observed at the brief home visit with his mother to be aggressive towards his sister and her property (e.g., trying to rip up her cherished paintings that she was trying to show me). [The mother] attempted to intervene by telling him to behave, but he continued when she was not looking ([the mother] was serving up dinner at the time), making [C] briefly shriek.
51. At my office, [D] busied himself with playing Lego and drawing with his sister. [D] expressed to me that he was “grumpy at Mummy’s house” because she yells at him and says “no [D]”. He added “even when I am good”. [C] interjected and said “that’s not true [D] – Mummy takes you bowling”. It is noted that [the mother] took the children bowling on the day of my home visit to her and the children at dinner time.
53. Both children were keen to proudly show [Ms Sorelli] and [Mr A] their Lego creations at the end of our discussion.
54. In my clinical opinion, [C] has an attachment to her mother and feels protective of her. During the assessment process, it appeared that she was being groomed by [the mother] with promises of special trips and time together in order to “compete” with [Ms Sorelli] and [Mr A] for the future care of the children. This process was observed to be damaging for the children, and they both knew that [D] was excluded from these plans.
…
55. This is by far the most troubling aspect for me in this entire case. I work with both victims and perpetrators in sexual abuse matters, and have done so for many years. The disclosure of sexual abuse by a child should always be taken seriously and thoroughly investigated with the protection of the child’s wellbeing throughout the process always being the first consideration. It would be simply dreadful for any child not to be believed when they have been sexually abused, and the psychological ramifications of same can be severe. However, similarly it is disastrous for an adult to be falsely accused of being a sex offender. Thus, in this case it was my role to investigate to the best of my ability the veracity of [C’s] disclosure with appropriate due concern for all parties concerned. As the Police had determined not to proceed to charging [Mr A] in relation to the disclosure, this is essentially the only way this matter can be put to rest at this time one way or another.
60. In my professional opinion, it is clear from my investigations that [the mother] coached [C] into making a false allegation against [Mr A]. There are numerous examples throughout the Police interview, during which [the mother] was present, that indicate [C’s] disclosure was coached. For example, when the Police office asked [C] about when she told her Mummy about what [Mr A] did, [C] corrected the Police officer and said “No, Mummy told me.” In response to the detailed questions regarding the alleged sexual activity, it was clear that [C] have never seen [Mr A] with an erection nor ejaculate. It was evident that [C] had seen [Mr A’s] penis in the shower, as he acknowledged that he had occasionally jumped in with the children to rinse off after they had all gone to the beach together, and did so because it was a large shower bay at the children played with toys on the shower floor while they got rinsed off. [C] stated that [Mr A’s] penis always pointed down towards the floor.
61. [C’s] behaviour and expression during the interview was not congruent with the disclosure of sexual abuse. At the start of the interview, [C] stated that “[Ms Sorelli] is the one who stole me off Mummy”. [C] had a clear mindset from the outset.
65. It is noted that letters of support are in evidence from numerous parties regarding the level of care provided to the children by [the mother] and [Mr A], including from [D’s] paternal grandparents and father, and [the mother] father (the children’s maternal grandfather).
66. In my clinical opinion, [the mother] previously suffered from episodic depression and substance dependence, and remains vulnerable to this. She was not symptomatic at the time of the assessment. She also displays traits of antisocial and borderline personality features, which have a pervasive effect on her interpersonal functioning.
67. The balance of evidence indicates that [the mother] has had frequent difficulties coping with the parenting responsibilities for her two children since they were born, and has required frequent respite. This appears to be reflective of [the mother’s] mental health symptoms, personality features, and personal history (e.g., her own attachment/abuse/grief & loss issues). It is also reflective of [the mother’s] stage of life immaturity. She appears to favour living the life of a young adult (e.g., party lifestyle) without the responsibilities of parenting.
68. [The mother] denied that she was currently using substances, however the collateral information suggests that her drug use has affected her parenting capacity in the past.
69. [The mother] advised at the time of assessment that her occupation was “stay at home mother”. [Her] occupation … would not necessarily affect an individual’s capacity to care for their child. However, it appears that [the mother] has difficulty with boundaries, and allowed her work to encroach in the home where the children were exposed to knowledge of sexuality inappropriate material.
70. The evidence available to me suggests that [the mother] has poor boundaries, and may have her own sexual issues that manifest overtly (which could be related to her own past experiences). Her … online advertising is explicit and she advertises herself as a highly sexualised person. There is an abundance of evidence in the collateral information that suggests [the mother] demonstrates poor judgment in her social life regarding who she allows in her home and around the children. She has placed them at risk of sexual, physical and psychological harm through these choices.
71. [C] loves her mother and is protective of her. [D] knows that his mother has difficulties being around him, and his attachment is considerably stronger with [Ms Sorelli] and [Mr A].
72. Given [the mother’s] difficulties in maintaining adequate parenting, it is my opinion that Orders which allow her quality time access rather than primary care of the children would be in the children’s best interests. It is evident that [the mother] has difficulty maintaining an appropriate environment and routine for the children for overnight stays, and thus it is suggested that the children spend day visits or after school visits with [the mother], rather than overnight or extended stays with her. In my opinion, it is in the best interests of the children to be placed in the primary care of [Ms Sorelli] and [Mr A], and continue to visit [D’s] paternal family as currently arranged. In terms of maintaining stability, and contributing to the positive attachment between the children and their mother, it is suggested that two after school visits for three hours each week, and one six hour day visit every alternate weekend would allow [the mother] to focus positively on the children, and assist her to cope with the time she spends with them. This will hopefully foster positive experiences and the development of healthier attachments than are currently evident.
73. It is my opinion that the disclosure of sexual abuse by [C] was false, and coached for an instrumental purpose by [the mother]. In my opinion there is no compelling evidence that [Mr A] sexually abused [C].
74. [Mr A] and [Ms Sorelli’s] parenting capacity was assessed to be excellent, and they have demonstrated that they can maintain a stable and healthy environment for the children over an extended period of time. The children view them as parental figures.
75. As previously stated, it is my opinion that the children are placed with [Ms Sorelli] and [Mr A], and have the opportunity to enjoy day visits with their mother as previously specified. The current arrangements with D’s paternal family in my opinion also should remain in place.
76. As stated in the Consent Order dated the 5th of August 2011, it is appropriate for Orders to be made to protect the children from exposure to illicit drug use, smoking of cigarettes in confined spaces, and alcohol intoxicated persons.
77. In the spirit of the Family Law Act (1975, Commonwealth) it is my opinion that efforts should be made for [the mother] to have a meaningful relationship with both children as it is safe to do so.
I have also had significant regard to the report from the Department of Health and Human Services. I am not as sanguine about the mother’s ability to cope as were the submissions by counsel on her behalf. I am concerned about the children being at risk of abuse in the care of the mother, particularly having regard to the evidence of Dr H at page 13 of her report at paragraph 47, with regard to her recording of the conversation the reporter had with C about the allegations.
I note and accept the evidence of Dr H at paragraph 56 that is, firstly, that it would be simply dreadful for any child not to be believed when they have been sexually abused and the psychological ramifications can be severe. Further, similarly, it’s disastrous for an adult to be falsely accused of being a sex offender. It is clear that the impact on a child with regard to sexual abuse seems to be that it is as bad to be sexually abused as to create in the mind of the child a belief that the child has been sexually abused. Either, if they are established, causes damage to the child.
The opinion of the expert is that the mother coached the child into making false allegations. She bases that not only on what was told to her directly, but on other material which she has set out in her report. It is clear that C is close to her mother and has expressed strong views to stay with her. I am not sure how much weight to give those views, bearing in mind the comments made by Dr H. However, I give them some weight, notwithstanding the age and maturity of the child.
In terms of the nature of the relationship of the child with each of the relevant parties, the mother has been a primary carer of the children, but with significant help from the applicants. I note the comments of Dr H in terms of the relative relationships and including her concerns about D’s attachment to the mother. I note the mother disputes that assertion by Dr H. There is a strong relationship between each of the children and the applicants and each of the children and the mother.
It is clear that the mother doesn’t overtly show that she is willing to facilitate a relationship between her children and the applicants, although she does so when the need arises. The applicants are willing and show an ability to facilitate a relationship between the children and the mother and have done so since the birth of each of the children. All three of the applicants and the mother support a relationship between the child and D’s father.
In terms of the effects of the change in the child’s circumstances, the orders proposed by the mother would leave the children solely in her care and as the sole person with parental responsibility. That will be a significant change from the past. The proposal by the applicants and I might add by the mother is that the time with D’s father doesn’t change. However, the applicants seek that the children live primarily with them but spend time with the mother and time with D’s father. It will clearly be less time than that contained in the earlier interim orders made in the Federal Magistrates Court. It is significant to note the child protection proceedings placed the children in the care of the applicants and saw it as being a safe place for them.
The parties live in the same city. There will be expense and difficulty in arranging times, but not that which is beyond the reach of either of the interested parties.
In terms of the capacity to parent the applicants have shown a capacity to parent in a strong way, and I note the submissions of the Independent Children’s Lawyers that their ability to parent is not really in issue. It is the issue of the mother’s ability to parent on a consistent and longitudinal basis that is in issue and to that end I note the comments made in Dr H’s report. Section 60CC(3)(g) and (3)(h) are not significantly relevant in this determination.
As to the attitude to the child responsibilities of parenthood I simply repeat what I said earlier, the applicants have shown a powerful responsibility to these children. The mother has endeavoured as best she can but has from time to time struggled.
There are issues of violence which are not a significant feature in this case and whatever orders I make will need to be considered in a final hearing. I have had regard to the whole of the circumstances since separation or since the children were born. I have left the two major factors, the so-called two pillars, to the end of these reasons, because I think that the two pillars, which I will refer to in a moment, in fact, need to be identified in light of the other s 60CC factors. That is the benefit of the children having a meaningful relationship with their parents and secondly, the need to protect the children from physical or psychological harm or from being subjected to or exposed to abuse and neglect or family violence.
There is no issue that there is benefit in both these children having a meaningful relationship with their mother. It is how that ought to be done which is the critical concern in this case. The critical feature in this case is the need to protect the children from physical, psychological harm or being exposed to abuse, neglect or family violence with particular regard to abuse in the other matters. I do not intend to go through the submissions of the Independent Children’s Lawyer and the applicant’s lawyer in terms of the concerns raised, except to say that I generally accept those submissions as being sound.
I am concerned that these children are at risk in the full time longitudinal care of their mother. Having considered those factors the first step I need to take is to consider whether there ought to be some form of equal shared parental responsibility. I am not sure that the section in any event applies, s 61DA, as it almost is implicit that it deals with disputes between the parents of children. In this case the dispute is not between the parents in the normal sense, it’s between the applicants and the mother with D’s father supporting the applicants. However, it seems to me under s 61DA(3) and having regard to the factors that I have just considered I do not consider it as appropriate in the circumstances for this presumption to be applied when making the order and I accept the submissions of Mr Fitzgerald in that regard.
I still have to consider parental responsibility in any event. Parental responsibility has been with the four parties for some time, but there have been difficulties over recent times which are set out in the affidavits and which are underlined in terms of the report of Ms H. It seems to me, having regard to all of those factors and considering those factors without making any positive findings in areas which are in dispute that it would be better for an order to be made that the applicants have parental responsibility for the children. In terms of residence, for the time being, and perhaps not forever, but for the time being, I propose to make orders that the children live with the applicants.
I do that for the reasons I have set out earlier, which is to ensure that these children are protected and are safe. In terms of time the applicants suggest that it ought to be supervised. The Independent Children’s Lawyer says it should not be supervised. It seems to me important that these children have a continuing relationship with their mother and that that relationship be as effective as possible.
In Lindsey & Baker [2007] FamCA 1037 Carmody J said of unacceptable risk:-
78. The so-called unacceptable risk test has become the standard used by the Family Court to achieve a balance between the risk of detriment to a child from sexual abuse and other forms of harm and the possibility of benefit to the child of unrestricted contact. Under the High Court's formulation in M v M, where a court makes a finding of unacceptable risk it is a finding that continued contact might do more harm than good[1] or a conclusion that its perceived advantages are outweighed by the potential disadvantages. However, a finding of unacceptable risk in respect of unsupervised contact does not preclude a finding that there is no unacceptable risk to the child if supervised contact is ordered. [2]
79. The relevant exercise is not a strictly legal one. It requires an assessment of the factors which might indicate the risk of any relevant harm to the child in the future.
80. Risks consist of chances and consequences. The more serious the consequences the higher the risk even if the odds of the happening of the relevant event are comparatively low. Conversely, it may be perfectly reasonable to take a risk on something in circumstances where, even though it is likely to occur, the consequences are comparatively insignificant and the potential benefits are worth it.
[1] [Footnote omitted].
[2] [Footnote omitted].
I am concerned about the children in the care of their mother but not so concerned that I would put in place the orders that Mr Munro seeks on behalf of the applicants.
If things diminish and become worse it’s always possible to come back to this Court to change the arrangements, and I accept that these children need time with their mother and I propose to make the orders as sought by the Independent Children’s Lawyer in that respect. I also intend to make orders, giving leave or directing that the children have some form of counselling, and that the material is not available without the leave of the Court, as I will want to know that it doesn’t interfere with any therapeutic relationship between the child or children and the counsellor.
So that it is clear I generally accept the submissions made on behalf of the Independent Children’s Lawyer and the applicants with the exception of the evidence that was attempted to put before me in those circumstances.
I certify that the preceding thirty four (34) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 5 December 2012.
Associate:
Date: 5 December 2012
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Family Law
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Civil Procedure
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Appeal
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