Standen and Standen
[2011] FamCA 966
•19 December 2011
FAMILY COURT OF AUSTRALIA
| STANDEN & STANDEN | [2011] FamCA 966 |
| FAMILY LAW – PARENTING –Parental responsibility – Where there is a dispute about parental responsibility – Where one child lives with the mother and the other child lives with the father – Where it is agreed that the children should spend time with each other – Allegations of sexual abuse of the mother’s daughter by the father – Whether there is an unacceptable risk of physical or psychological harm or abuse – Circumstances under which the children spend time with the parent with whom they do not live – Cost and inconvenience associated with facilitating contact between the children and between the children and each parent – Where the father has an enmeshed relationship with the child with whom he lives – Where it is agreed that there should be counselling to assist in restoring the relationship between the mother and the child that lives with the father. |
| McCall & Clark (2009) FLC 93-405); Mazorski & Albright (2007) 37 Fam LR 518; Leighton & Carey [2010] FamCAFC 94 |
| Family Law Act 1975 (Cth) ss 60CA, 60CC, 61B, 61C, 61DA, 65DAA and 65DAC Evidence Act1995 (Cth) s 140 |
| APPLICANT: MOTHER | Ms Standen |
| RESPONDENT FATHER: | Mr Standen |
| FILE NUMBER: | SYC | 2118 | of | 2010 |
| DATE DELIVERED: | 19 December 2011 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Loughnan J |
| HEARING DATES: | 29th & 30th November, 1st & 2nd December 2011 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT MOTHER: | Mr D. Dura |
| SOLICITOR FOR THE APPLICANT MOTHER | Willis & Bowring Solicitors |
| RESPONDENT FATHER | In Person |
| INDEPENDENT CHILDREN’S LAWYER | Delaney Lawyers |
Orders
1. All previous parenting orders, save those made on 2 December 2011 are discharged.
2. The child, B (born … 2002) (“B”) shall live with the mother
3. The child, C (born … 1997) (“C”) shall live with the father.
4. The mother shall have sole parental responsibility for making decisions about the long term care, welfare and development of B.
5. The father shall have sole parental responsibility for making decisions about the long term care, welfare and development of C.
6. Pending implementation of the arrangements set out in Order 12, the parents do all such things, give all such directions and sign all such documents as may be necessary to ensure C and B forthwith resume spending time with each other at D Town Community Contact Centre, in accordance with the previous arrangements, at such times and on such dates as may be nominated by the Director or Manager of the centre.
7. In implementing the provisions of Order 6, the parents do all such things as may be reasonably required of them by the Director or Manager of the D Town Community Contact Centre, including but not limited to following the reasonable directions of such person or their nominee as to the time of arrival and departure from the said centre and the point of entry to and departure from the said centre.
8. That the father do all such things, give all such directions and sign all such documents as may be necessary to cause C to attend counselling with an accredited counselling service or accredited counsellor within a reasonable proximity to his current place of residence and, in the absence of such agreement between the parents as to such counselling service or counsellor within twenty-one (21) days of the date of these Orders then as may be nominated by the Regional Co-ordinator of Family Court Child Dispute Services at Sydney or his/her nominee, with such counselling to address the issues identified by Dr E in her Report dated 7 July 2011 and, in particular:
a.C’s relationship(s) with each of his parents;
b.C’s relationship with B; and
c.C’s relationship with the maternal grandparents.
9. Both the father and the mother shall participate in the counselling referred to in Order 8 with C, if so requested by the counsellor, and further, the mother do all things necessary to facilitate B’s inclusion in such counselling as and when requested by the counsellor.
10. It is noted that the maternal grandparents indicated, through the mother’s Counsel, their willingness to participate in the counselling referred to in Order 8 and Order 9, as and when requested by the counsellor.
11. The Independent Children’s Lawyer is at liberty to provide to the coordinator of M Care and the Family Consultant or Therapist a copy of these Orders, a copy of the Report of Dr E and a copy of the Child Responsive Program Memorandum of Ms F, which formed part of the evidence of these proceedings.
12. The parents shall do all such things, give all such directions and sign all such documents as may be necessary to ensure that C and B spend the following time with each other:
12.1In Weeks 1 and 3 of each four (4) week cycle:
12.1.1The mother deliver B to the supervised contact centre at G Town (the “Contact Centre”) at the commencement of the relevant period on Saturday or such other days as may be nominated by the Coordinator of the Contact Centre, at such time as may be nominated by the said Coordinator and to collect B from the Contact Centre at the conclusion of such period, which shall not exceed two (2) hours;
12.1.2The father deliver C to the Contact Centre at the commencement of the relevant period on Saturday or such other days as may be nominated by the Coordinators of the Contact Centre, at such time as may be nominated by the said Coordinator and to collect C from the Contact Centre at the conclusion of such period, which shall not exceed two (2) hours;
12.1.3The father shall, if he so elects, spend time with B and C at the Contact Centre for the first hour of the contact period nominated above;
12.1.4The mother shall, if she so elects, spend time with B and C at the Contact Centre for the second hour of the contact period nominated above.
12.2As and from a date agreed by the parents, but no later than 31 May 2012, in the fourth week of each four (4) week cycle:
12.2.1the mother shall cause C to be collected from after school on Friday and delivered to the home of the maternal grandparents at H Town and shall cause C to be returned to school on the following Monday, at the completion of the relevant weekend.
12.2.2The mother shall cause B to be delivered to the residence of the maternal grandparents at H Town no later than 3.00pm on Saturday of the said weekend.
13. During school holiday periods, the time the children are to spend with each other and with the parents, pursuant to these Orders, shall be suspended and each four (4) week cycle shall resume with the first week of each new school term.
14. During each school holiday period, the parents do all such things as may be necessary to ensure the children, B and C, spend at least one (1) day between the hours of 9.00am and 5.00pm with each other, at either the Contact Centre or such other venue as the parents may agree in writing at least fourteen (14) days prior to such holiday periods or after 31 May 2012, at the home of the maternal grandparents at H Town and its environs.
15. Unless the parents otherwise agree in writing, the holiday time referred to in Order 14 above, be facilitated by the father delivering C to the place nominated for the children to spend time together and then collecting him from such a venue at the completion of the relevant time and by the mother delivering B to such venue at the commencement and collecting her from such venue at the completion of such time.
16. Until further order the mother shall be responsible for costs associated with the counselling and the children spending time with each other at Contact or Community Centres in accordance with these orders. However, the parents shall responsible for their own transport costs associated with those arrangements.
17. Each of the mother and the father shall request the Coordinators of the Contact Centre to implement appropriate arrangements for the changeover of the parents at the Centre, so as to ensure the mother and the father do not come into contact with each other at the Centre.
18. For the purpose of implementing the arrangements referred to in these Orders, the mother shall be at liberty to cause the maternal grandmother, her son Mr I or his wife MS J, or such other adult members of her family, other than Mr K (unless the father agrees in writing), as are known to C, to collect C at the commencement of such time and to return him to either the father’s residence or school, as may be appropriate, at the completion of such time.
19. That each parent share with the other parent any information regarding health, emotional well-being or schooling received by them during the time the children are in their care including medication prescribed and/or taken, changes in behaviour and school newsletters and reports.
20. The parents are hereby restrained from denigrating the other parent within the hearing of the children or either of them or from allowing any other person to do so within the hearing of the children or either of them.
21. Each parent shall notify the other in writing of any changes in a telephone contact number within three (3) days of any such change.
22. The parents shall do all such things as may be necessary to ensure that the children or either of them may communicate with the other parent at all such reasonable times as the children may reasonably request when they are spending time with the other parent and in order to facilitate this, each parent shall ensure the children have available to them a working telephone service and are instructed in the use of such service should the need arise.
23. Each parent will notify the other promptly, and in any event no later than within four (4) hours, of any illness or injury suffered by the children or either of them requiring hospitalisation and in the event of the latter each parent shall ensure that the children are provided with any prescribed medication and that it is administered to them in accordance with the directions of the treating medical practitioner.
24. Both parents shall authorise any treating general practitioner and/or medical specialist to provide any information which either parent may reasonably require concerning the welfare of the children.
25. The mother is permitted and solely authorised to obtain a passport for B, without the consent of the father and the requirement for the father to execute a Passport Application.
26. The mother be permitted to travel with B outside Australia, provided that:
26.1The mother provides the father with not less than twenty-one (21) days written prior notice of her intention to travel, together with an itinerary in respect of such travel; and
26.2Such travel is to a country, state or province which is a signatory to the Hague Convention on the Civil Aspects of International Child Abduction.
27. These proceedings be restored to the list for review in December 2012, on a date and at a time allocated by the Court for assessment of C’s counselling, pursuant to these Orders, and to determine what, if any, further Orders should be made for the benefit of the children.
28. Ms F, Family Consultant, or such other Family Consultant as may be nominated by the Regional Co-ordinator of Family Court Child Dispute Services at Sydney or his/her nominee, shall prepare a Family Report prior to the date referred to above, such Report to address the progress of C’s counselling, his relationships with each of the parents, his relationship with B and his relationship with the maternal grandparents, as well as B’s relationships with each of the parents and her relationship with C.
29. That the Independent Children’s Lawyer be at liberty to provide a copy of the following documents to C’s counsellor, so as to assist in assessing and assisting C:
29.1A copy of these Orders;
29.2A copy of the Reasons for Judgment of the Honourable Justice Loughnan;
29.3A copy of Dr E’s Report of 7 July 2011; and
29.4Such further or other documents as the Court may determine.
30. That each parent and the Independent Children’s Lawyer have liberty to apply on seven (7) days notice in relation to these Orders, or the matter generally, upon approach to the Associate to the Honourable Justice Loughnan.
31. As soon as practicable after the making of these orders the ICL shall liaise with the Regional Co-ordinator of Family Court Child Dispute Services at Sydney or his/her nominee in relation to the practicability of the ordered arrangements insofar as the Service is concerned. In that specific regard or otherwise, the parties may restore the matter before Justice Loughnan within 28 days of the date of delivery of judgment, or such further time as they might agree, upon notice to the Court and each other, in relation to the wording of the Orders.
32. It is noted that the Court made an order on 29 November 2011 suppressing the release of the mother’s address except by way of Court order that remains in force.
33. Pursuant to s 62B and s 65DA(2) of the Family Law Act 1975 the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders are set out in the attached Fact Sheet.
IT IS NOTED that publication of this judgment under the pseudonym Standen & Standen 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 SYDNEY |
FILE NUMBER: SYC 2118 of 2010
| Ms Standen |
Applicant
and
| Mr Standen |
Respondent
REASONS FOR JUDGMENT
Introduction
These are parenting proceedings in relation to C who is 14 years of age and B who is 9 years of age. They are the children of Ms and Mr Standen. The parents separated under one roof on 31 December 2007. In 2009 the mother’s daughter, Ms L, disclosed that she had been physically and sexually assaulted by the father since she was 7 years of age. She ultimately alleged that the assaults spanned about 8 years until she left the parties’ home on her 15th birthday. The allegations were accepted by the Joint Investigative Response Team but the father was not charged and there is no ongoing investigation. Since October 2009 B has lived with the mother and has not spent time with the father and C has lived with the father and has not spent time with the mother. At the conclusion of the hearing it was agreed that those living arrangements will continue and that the children will spend time together. The mother proposed that the children spend supervised time with each parent. The father proposed that B spend unsupervised time with him and that C spend time with the mother if he so wishes. The father proposed that the parents have equal shared parental responsibility for the children. The mother proposed that the parents each have sole parental responsibility for the child who mainly lives with that parent.
The key issues are the risk of harm to B from the father and the most effective method of seeking to restore the mother’s relationship with C. The way in which the parties will share the cost of counselling, supervision and travel is also an issue.
For ease of reference I will refer to the maternal grandmother and the maternal step-grandfather as the maternal grandparents.
Applications
Events overtook the parties’ proposals. At the close of the oral evidence the competing proposals were as follows:
The Independent Children’s Lawyer sought orders as follows:
1.That the child, [B] (born in 2002) (“[B]”) live with the mother.
2.That the child, [C] (born in 1997) (“[C]”) live with the father.
3.That the mother have sole parental responsibility for the making of the decisions about the long term care, welfare and development of [B].
4.That the father have sole parental responsibility for the making of the decisions about the long term care, welfare and development of [C].
5.That pending implementation of the arrangements set out in Order 11, the parents do all such things, give all such directions and sign all such documents as may be necessary to ensure [C] and [B] forthwith resume spending time with each other at [D Town] Community Contact Centre, in accordance with the previous arrangements, at such times and on such dates as may be nominated by the Director or Manager of such centre.
6.That in implementing the provisions of Order 5, the parents do all such things as may be reasonably required of them by the Director or Manager of the [D Town] Community Contact Centre, including but not limited to following the reasonable directions of such person or their nominee as to the time of arrival and departure from the said centre and the point of entry to and departure from the said centre.
7.That the father do all such things, give all such directions and sign all such documents as may be necessary to cause [C] to attend counselling with an accredited counselling service or accredited counsellor within a reasonable proximity to his current place of residence and, in the absence of such agreement between the parties as to such counselling service or counsellor within twenty-one (21) days of the date of these Orders then as may be nominated by the Director of the Family Court Child Dispute Service or his/her nominee, with such counselling to address the issues identified by [Dr E] in her Report dated 7 July 2011 and, in particular:
7.1[C’s] relationship(s) with each of his parents;
7.2[C’s] relationship with [B]; and
7.3[C’s] relationship with the maternal grandparents.
8.That both the father and the mother participate in the counselling referred to in Order 7 with [C], if so requested by the counsellor and, further, the mother do all things necessary to facilitate [B’s] inclusion in such counselling, as and when requested by the counsellor.
9.That it be noted the maternal grandparents have indicated, through the mother’s Counsel, their willingness to participate in the counselling referred to in Order 7 and Order 8, as and when requested by the counsellor.
10.That the Independent Children’s Lawyer be at liberty to provide to the coordinator of [M Care] and the Family Consultant or Therapist a copy of these Orders, a copy of the Report of [Dr E] and a copy of the Child Responsive Program Memorandum of [Ms F], which formed part of the evidence of these proceedings.
11.That the parents do all such things, give all such directions and sign all such documents as may be necessary to ensure that [C] and [B] spend the following time with each other:
11.1In Weeks 1 and 3 of each four (4) week cycle:
11.1.1The mother deliver [B] to the supervised contact centre at [G Town] (the “Contact Centre”) at the commencement of the relevant period on Saturday or such other days as may be nominated by the Coordinator of the Contact Centre, at such time as may be nominated by the said Coordinator and to collect [B] at the conclusion of such period, which shall not exceed two (2) hours from the Contact Centre;
11.1.2The father deliver [C] to the supervised contact centre at the Contact Centre at the commencement of the relevant period on Saturday or such other days as may be nominated by the Coordinators of the Contact Centre, at such time as may be nominated by the said Coordinator and to collect [C] at the conclusion of such period, which shall not exceed two (2) hours from the Contact Centre;
11.1.3The father shall, if he so elects, spend time with [B] and [C] for the first hour of the contact period nominated above at the Contact Centre;
11.1.4The mother shall, if she so elects, spend time with [B] and [C] for the second hour of the contact period nominated above at the Contact Centre.
11.2As and from the date nominated by the counsellor, but no later than 30 April 2012, in the fourth week of each four (4) week cycle:
11.2.1the mother shall cause [C] to be collected from after school on Friday and delivered to the home for the maternal grandparents at [H Town] and shall cause [C] to be returned to school on the following Monday, at the completion of the relevant weekend.
11.2.2The mother shall cause [B] to be delivered to the residence of the maternal grandparents at [H Town] no later than 3.00pm on Saturday of the said weekend.
12.That during school holiday periods, the time the children are to spend with each other and with the parents, pursuant to these Orders, shall be suspended and each four (4) week cycle shall resume with the first week of each new school term.
13.That during each school holiday period, the parties do all such things as may be necessary to ensure the children, [B] and [C], spend at least one (1) day between the hours of 9.00am and 5.00pm with each other, at either the Contact Centre or the home of the maternal grandparents at [H Town] and its environs or such other venue as the parties may agree in writing, at least fourteen (14) days prior to such holiday periods.
14.That the holiday time referred to in Order 13 above, be facilitated by the father delivering [C] to the place nominated for the children to spend time together and then collecting him from such a venue at the completion of the relevant time and by the mother delivering [B] to such venue at the commencement and collecting her from such venue at the completion of such time.
15.-
16.That each of the mother and the father shall be responsible for one half of the costs associated with the children spending time with each other at either the [D Town] Community Centre or the Contact Centre referred to elsewhere in these Orders.
17.That each of the mother and the father shall request the Coordinators of the Contact Centre to implement appropriate arrangements for the changeover of the parents at the Centre, so as to ensure the mother and the father do not come into contact with each other at the Centre.
18.That for the purpose of implementing the arrangements referred to in these Orders, the mother shall be at liberty to cause either of the maternal grandparents, her son [Mr I] or his wife [Ms J], or such other adult members of her family as are known to [C] to collect [C] at the commencement of such time and to return him to either the father’s residence or school, as may be appropriate, at the completion of such time.
19.That each party share with the other party any information regarding health, emotional well-being or schooling received by them during the time the children are in their care including medication prescribed and/or taken, changes in behaviour, school newsletters and reports.
20.That both parties are hereby restrained from denigrating the other party within the hearing of the children or either of them or from allowing any other person to do so within the hearing of the children or either of them.
21.That each party shall notify the other in writing of any changes in a telephone contact number within three (3) days of any such change.
22.That both parties do all such things as may be necessary to ensure that the children or either of them may communicate with the other parent at all such reasonable times as the children may reasonably request when they are spending time with the other parent and in order to facilitate this each parent shall ensure the children have available to them a working telephone service and are instructed in the use of such service should the need arise.
23.That each party will notify the other promptly and in any event no later than within four (4) hours any illness or injury suffered by the children or either of them requiring hospitalisation and in the event of the latter each parent shall ensure that the children are provided with such medication and that it is administered to them in accordance with the directions of the treating medical practitioner.
24.That both parents shall authorise any treating general practitioner and/or medical specialist to provide any information which either parent may reasonably require concerning the welfare of the children.
25.That the mother be permitted and solely authorised to obtain a passport for [B], without the consent of the father and the requirement for the father to execute a Passport Application.
26.That the mother be permitted to travel with [B] outside Australia, provided that:
26.1The mother provides the father with not less than twenty-one (21) written days prior notice of her intention to travel, together with an itinerary in respect of such travel; and
26.2Such travel is to a country, state or province which is a signatory to the Hague Convention on the International Abduction of Children.
27.That these proceedings be stood over for review by the Court in December 2012, on a date and at a time allocated by the Court for assessment of [C’s] counselling, pursuant to these Orders, and to determine what, if any, further Orders should be made for the benefit of the children.
28.That [Ms F], Family Consultant, or such other Family Consultant as may be nominated by the Director of the Child Dispute Service of the Sydney Registry of the Court or his/her nominee prepare a Family Report prior to the adjourned date referred to above, such Report to address the progress of [C’s] counselling, his relationships with each of the parties, his relationship with [B] and his relationship with the maternal grandparents, as well as [B’s] relationships with each of the parties and her relationship with [C].
29.That the Independent Children’s Lawyer be at liberty to provide a copy of the following documents to [C’s] counsellor, so as to assist in assessing and assisting [C]:
29.1A copy of these Orders;
29.2A copy of the Reasons for Judgment of the Honourable Justice Loughnan;
29.3A copy of [Dr E’s] Report of 7 July 2011; and
29.4Such further or other documents as the Court may determine.
30.That each party and the Independent Children’s Lawyer have liberty to apply on seven (7) days notice in relation to these Orders, or the matter generally, upon approach to the Associate to the Honourable Justice Loughnan.
The mother also sought the making of those orders.
The father did not oppose many of the orders proposed by the ICL but by a document settled by the father on the last day of the hearing, the father sought:
1.That the parties have equal shared parental responsibility for the children:
[C] born … 1997, and
[B] born … 2002.
2.That the child, [C], born … 1997 live with the respondent father.
3.That the child, [B], born … 2002 live with the applicant mother.
4.That the child, [C], spend time with the applicant mother at such times as arranged in accordance with the wishes of the child, [C].
5.[B] and [C] start seeing each other in a contact centre. At this time I’m allowed to spend 10 minutes in the room with both children and the supervisor. This is to allow [B] to get comfortable with me.
6.See [B] every Saturday for six weeks.
[Ms Standen] see [C] every Sunday for six weeks.
And then next six weeks reversed both parents are allowed to attend any event sporting and schooling etc. Be the responsibility to inform the other parent.
7.[Ms Standen] must start and organise therapy session as soon as possible. I will facilitate. Been attending some in [N Town]. If [Ms Standen] wants this therapy session outside of [N Town] she pay a fee of 80c per klm starting from [N Town] or my residence, If south allow 25 klm. Fee travel. This is because of my limited income.
8.To facilitate 6 [Ms Standen] is to drop [B] off as I will drop [C] off at an agreed stop in [G Town]. This is to only happen if ever parent isn’t attending a sports event in the child’s locate. In this case the responsible parent will drop off at location and won’t interfere with the other parent’s time. If [Mr K] is to be present [Ms Standen] must inform me so I can advise [C].
9.Also I would like my wife to seek anger management because of road rage issue outburst in describing me is very consistent with past events.
10.That the applicant mother pay the respondent father’s costs of and incidental to these proceedings on an indemnity basis.
11.That the applicant mother be and is hereby restrained from removing the subject children from the State of New South Wales and/or Australia without the written consent of the respondent father.
Issues
The ICL identified the following issues:
(1)History of the parties’ relationship.
(2)History and nature of the father's relationship with the children.
(3)History and nature of the mother’s relationship with the children.
(4)Whether the alleged sexual abuse by the father of the mother’s daughter Ms L occurred.
(5)If not, whether the mother and/or her family fabricated the alleged abuse, as the father asserts.
(6)Whether the alleged assault by the wife’s father of C occurred.
(7)Whether the disruption to the relationship between C and the mother is irredeemable.
(8)Whether the father has contributed to the breakdown of the relationship between C and the mother.
(9)Whether C is parentified (in that he has become, in effect, a carer for the father).
(10)Whether C has been “isolated” by the maternal family, as alleged by the father.
(11)Whether B is at risk (of sexual abuse or psychological harm) if she spends time with the father without supervision.
(12)Whether any time that B should spend with the father should be supervised and, if so, by whom and for how long?
(13)The effect on each of the children of their separation from each other.
(14)The state of each parent’s mental health.
(15)The stability and/or appropriateness of each parent’s accommodation.
Written Evidence
The mother relied on the following Affidavits:
·Affidavit of mother sworn 26 March 2010 and filed on 9 April 2010;
·Affidavit of mother sworn 24 August 2011 and filed on 25 August 2011; and
·Affidavit of Mr K sworn 24 August 2011 and filed 30 August 2011.
The father relied on the following Affidavits:-
·Affidavit of the father sworn 27 May 2010 and filed on 28 May 2010; and
·Affidavit of the father sworn and filed on 30 September 2011.
Expert Evidence
The following expert evidence was relied on:
·Report of Dr E dated 7 July 2011
·Child and Parents Issues Assessment by Ms F dated 5 August 2010.
The Hearing
The matter was listed for hearing over four days commencing 29 November 2011. The father conducted his case in person. The father had a very passionate and demonstrative style of presentation but he was generally co-operative and respectful throughout the hearing. He became very agitated during closing addresses. At the conclusion of the hearing on 2 December 2011, after I had reserved judgment I was called back into Court. I was told that after I had left the Court room the father told the ICL and the mother’s counsel that an agreement for the children to spend time with each other at D Town on 8 December 2011 announced during submissions, would not go ahead and that he could not afford it.
As a result of the father’s announcement, counsel for the mother made an oral application for orders in terms of the announced agreement and short service on the father to give him the opportunity to argue against the agreed arrangements, should he wish. For reasons given at the time I made the following orders:
1.Orders are made in terms of the document titled Interim Orders Sought by the Mother Mr Standened Exhibit A as set out hereunder:
1.That the parents do all such things, give all such directions and sign all such documents as may be necessary to ensure [C] and [B] spend time with each other at [D Town] Community Contact Centre, in accordance with the previous arrangements, from 4 pm for 1 hour on Thursday, 8 December 2011.
2.That in implementing the provisions of Order 1, the parents do all such things as may be reasonably required of them by the Director or Manager of the [D Town] Community Contact Centre, including but not limited to following the reasonable directions of such person or their nominee as to the time of arrival and departure from the said centre and the point of entry to and departure from the said centre.
3.That the Mother shall be responsible for the costs of the Contact Centre on 8 December 2011.
4.That the parties shall do all things necessary to ensure that each of the children attend the Contact Centre for the purposes of implementing the time provided for in Order 1 above.
5.That the Father shall cause [C] to be delivered to the Maternal Grandmother at 10 am at [H Town] Golf Club for the purposes of [C] spending time with [B] and the Maternal Grandmother until 3 pm on Thursday, 22 December 2011.”
2.That the terms of this order be served on the Father by the solicitor for the Mother in the first instance by email not later than 5:00 pm on Friday, 2 December 2011.
3.Leave is granted to the Father to restore the proceedings to the list to oppose these orders by arrangement with Justice Loughnan’s associate on giving 2 hours’ notice to the Independent Children’s Lawyer and the solicitor for the mother. That restoration to be sought not later than 12 noon on Tuesday, 6 December 2011.
4.In the event that the proceedings are restored pursuant to that order leave is granted to the parties generally to attend by telephone should they so wish.
5.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.
The father contacted the Court seeking to be heard in relation to the arrangements for 8 December 2011 and by negotiation with the parties the matter was relisted on the morning of that day. The father did not attend on 8 December 2011 and I understand from a subsequent communication with my associate that he was not able to access the messages left for him in relation to the relisting. On 8 December 2011, no change was made to the orders of 2 December 2011.
Short History
The mother was born in 1966 and, as at the date of hearing, she was 45 years of age. The father was born in 1959 and as at the date of hearing, he was 52 years of age. The parties married in 1996 and finally separated on 31 December 2007.
The Children
There are two children of the marriage:
Cwho was born in 1997 and as at the date of the hearing was 14 years of age; and
Bwho was born in 2002 and as at the date of the hearing was 9 years of age.
The mother has two adult children from a previous relationship, namely, Mr I and Ms L who are 21 years of age and 18 years of age, respectively.
Background Facts
The parties married in 1996. The mother’s children Ms L and Mr I lived with the parties. During the parents’ relationship, the mother was generally the wage earner and the father stayed home with the children.
Ms L ceased living with the parties when she left the former matrimonial home in December 2007 and moved in with her maternal grandmother and step-grandfather. That was her 15th birthday.
On 31 December 2007 the parties separated under one roof.
In early September 2009, Ms L told the mother and Mr K, the step-maternal grandfather, that she had been raped by the father. She later said that he had physically and sexually abused her since she was 7 years of age.
In early October 2009 the mother collected C and B and moved their residence from the former matrimonial home to the home of the maternal grandparents.
On 4 October 2009 there was a confrontation at the maternal grandparents’ property at H Town. C had telephoned the father who then made enquiries through the police and was able to find out that the children were at the H Town property. Thereafter the parties, the maternal step-grandfather, the children and Ms L attended O Town Police Station. Since that time C has lived with the father and B has lived with the mother.
On 15 October 2009, an Apprehended Violence Order (“AVO”) was issued by P Town Local Court against the father for the protection of the mother, B, Ms L and the maternal grandmother for a period of 2 years.
Between October and November 2009, JIRT conducted investigations into the allegations of sexual abuse made by Ms L. It was concluded that Ms L’s trauma was such that she was unable to provide sufficient detail of the allegations to pursue criminal charges against the father. Subject to Ms L providing more information, the relevant files were closed and the parties were so advised.
It is the mother’s case that on 9 December 2009 and again on 20 January 2010, she sought contact with C through her solicitors but that this was denied by the father. The mother said that in February 2010, she unsuccessfully attempted to contact C via telephone.
On 9 April 2010, the mother commenced these proceedings by filing an Initiating Application in this Court.
In mid 2010, B and C commenced spending time together at D Town Family Support Centre each alternate Thursday.
On 2 August 2010, the families attended upon Family Consultant, Ms F for interviews. Ms F’s Child and Parents Issues Assessment report was completed on 5 August 2010.
On 1 September 2010, consent orders were made by Registrar George in relation to property matters.
On 14 September 2010, Ainslie-Wallace J made orders by consent that a Chapter 15 expert be appointed and produce a report in relation to the parenting proceedings.
In February 2011 the father and C moved down the coast to the father’s land at Q Town.
In April and May 2011, the parties and children attended upon Dr E for the preparation of an expert report.
Credibility
This case involved allegations that the father assaulted Ms L and B and an allegation that the maternal step-grandfather assaulted C. There were inconsistencies in the evidence of the parties and Mr K but for various reasons it is not possible to make findings about the alleged assaults. Otherwise there was little by way of relevant factual dispute and therefore it is not necessary or helpful to make general findings of credit.
The Expert Evidence
The Single Expert
Dr E is a Child Adult and Family Psychiatrist with rooms at Suburb R. Her report is dated 7 July 2011. The report is not provided under cover of an affidavit but no issue was taken with that fact.
On 14 September 2010 an order was made by consent for the appointment of a single expert. The order provided for the parents to equally meet Dr E’s fees. The order was not subsequently challenged by either party. The mother paid one half of Dr E’s fee. The report dated 7 July 2011 was subsequently released but prior to the father’s compliance with the order that he contribute to the costs of the report. On 16 September 2011 Dr E told the ICL that, in light of the outstanding fee, she would not be available for the final hearing. On 22 November 2011 the proceedings were relisted on the application of the ICL because of the father’s failure to pay Dr E’s fees. The father appeared by telephone and the effect of his submissions was that he was unhappy with Dr E’s report and with the fact that certain information had been provided to her and that certain other records had not. In any event he said that he could not afford to pay the required amount. I indicated that I would not require Dr E to undertake any further work, unless her fees were paid.
Upon the commencement of the trial on 29 November 2011 I was told that the ICL and the mother did not require Dr E for cross-examination. The father did want to cross-examine Dr E and suggested that he make an application for the emergency release of funds from his superannuation to meet the required fees. The ICL, Mr Hearl, cast some doubt on whether such an application would be successful. In any event it was apparent that there would be no guarantee of payment. I reiterated to the parties that I would not require Dr E to perform any more work in the proceedings in circumstances where, in breach of a court order, the fees for her work to date had not been paid.
A puzzling aspect of the case is that the father has been out of paid employment for many years. He told me that he had been refused legal aid under a means test because he owned 2 properties. One property has since been sold. The father told me that he was not aware of the value of his Q Town property but I was left with the impression that it is of modest value. I have the uncomfortable feeling that the father may well have been entitled to a grant of legal aid and that as a result, Dr E could have been fully paid. I note that the father still owes Dr E for one half of the fee for her report.
Dr E’s report is before the Court. The father was not able to make arrangements for Dr E to attend for cross-examination. Her report is unchallenged.
Dr E qualified with an MBBS. She is a Fellow of the Royal Australian and New Zealand College of Psychiatrists and has a Certificate in Child and Family Psychiatry Dr E has an extensive work history in this field in hospital and community settings and private practice. Dr E has provided expert reports to the Family Court since 1987.
The Child and Parent Issues Assessment
The assessment was provided at a very early stage of the proceedings by Ms F, a Family Consultant. Ms F was not required for cross-examination and her opinions are not challenged.
Submissions
The case outline documents provided on behalf of the ICL, the mother and the father contained submissions.
Mr Hearl, the ICL addressed the Court first, speaking to two sets of proposed orders provided to the Court on the morning of the last day of the trial. One set of orders addressed interim issues that needed attention during any period that the Court reserved judgment and the other contained proposed final orders. Following discussions between the parties, I was told, without demur from the father, that interim arrangements had been agreed and therefore the interim orders would not be pressed by the ICL. As is referred to earlier in these reasons, after the conclusion of the trial the father told the legal representatives for the children and the mother that he no longer agreed to one of those arrangements.
The mother’s counsel told the Court that rather than the orders formally submitted in her case, the mother supported the making of orders as sought by the ICL.
The father prepared written submissions but on their face they referred to interim proceedings and therefore were prepared for an earlier stage in the proceedings.
The Legislation
Parenting proceedings are determined on the basis of s 60CA of the Family Law Act1975 (Cth) “(the Act”). It provides:
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
The task of identifying appropriate parenting orders starts with parental responsibility.
Section 61DA of the Act creates a presumption in favour of equal shared parental responsibility. The presumption may not apply and if it does apply, it can be rebutted. Depending on whether an order will be made for equal shared parental responsibility or not, s 65DAA requires that the court consider orders for equal time or substantial and significant time.
Findings are made by reference to what is in the child’s best interests. The Act specifies in s 60CC the matters that are relevant to the determination of what is in a child’s best interests.
Section 60CC(1) requires the Court to consider the “primary considerations” and “additional considerations” articulated in ss 60CC(2) and 60CC(3) respectively.
Turning to the matters in s 60CC as they relate to these proceedings:
Primary Considerations:
(2)(a) the benefit to the child of having a meaningful relationship with both of the child's parents
The court should consider and weigh the evidence at the date of the hearing and determine how, if it is in a child’s best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents but depending upon factual circumstances, the present relationship may also be relevant (McCall & Clark (2009) FLC 93-405).
A meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child (Mazorski & Albright (2007) 37 Fam LR 518).
In his written submissions the father said that it is appropriate that the children have a relationship with each of the parents. The mother supports the proposals of the ICL that would have physical contact between the children and both parents and each other.
The background facts suggest that the children did have meaningful relationships with their parents. Again, the background facts suggest that a meaningful relationship might be available in the future.
(2)(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
‘Abuse’ and ‘family violence’ are defined terms.
Section 4 of the Act includes the following definitions:
"abuse" , in relation to a child, means:
(a) an assault, including a sexual assault, of the child which is an offence under a law, written or unwritten, in force in the State or Territory in which the act constituting the assault occurs; or
(b) a person involving the child in a sexual activity with that person or another person in which the child is used, directly or indirectly, as a sexual object by the first-mentioned person or the other person, and where there is unequal power in the relationship between the child and the first-mentioned person.
"family violence" means conduct, whether actual or threatened, by a person towards, or towards the property of, a member of the person's family that causes that or any other member of the person's family reasonably to fear for, or reasonably to be apprehensive about, his or her personal wellbeing or safety.
In his written submissions the father said that he denied that he is a risk to the children.
As I understand her case, the mother is convinced that the father sexually and otherwise physically abused Ms L and she has concerns that he may have abused B.
Allegations in relation to Ms L
It is alleged that the father sexually abused Ms L over many years. Ms L is an adult and she is not a witness in these proceedings. The evidence about the assaults and abuse comes in the form of evidence of what Ms L told the mother, her maternal step-grandfather and from Joint Investigative Response Team records. JIRT accepted Ms L’s allegations and as a result, the father is recorded as a Person Causing Harm on a police database called KIDS and as a Person of Interest on the COPS database. However, the JIRT file was closed without any action being taken against the father by the police.
Records were subpoenaed from the S Hospital in relation to the initial referral of Ms L to a sexual assault unit. There was a formal objection by the Hospital to inspection under a provision of the NSW Criminal Procedure legislation which does not appear to have direct application to these proceedings. There was no appearance on behalf of the Hospital to support the objection. Neither the ICL nor the mother’s counsel sought to inspect the records. The father said he was only interested in the first date the notification was referred to the unit and did not want to read the clinical notes. On that basis, I gave the ICL leave to inspect in the first instance and he informed the Court and the parties that the relevant date was 7 September 2009. In the circumstances, credit is due to the father for respecting Ms L’s privacy.
The evidence about the disclosures was not consistent. It appears that on 6 September 2009 Ms L first disclosed to her mother and to Mr K that she had been raped by the father some years earlier.
Ms L lived with the parties during most of their marriage. Ms L left the parties’ home and moved in with the maternal grandparents on 10 December 2007, when she turned 15 years of age. The maternal step-grandfather, Mr K said that Ms L said she was frightened of living with the parties. He did not say that she gave details of the reason for or nature of those fears. He said that Ms L suffered nightmares while she lived with the maternal grandparents and that they arranged for counselling for her. He said that he recalls spending many nights in the first year after she came to live with them and thereafter holding Ms L until she stopped crying and calmed down following the nightmares.
Ms L was still living with the maternal grandparents in 2009. In late August / early September 2009, with the agreement of the maternal grandparents, Ms L spent at least one weekend at the Suburb T home of her brother Mr I and his girlfriend Ms J. The mother variously deposed to that being during a couple of days commencing on or about 30 August 2009, in September 2009 and in late September 2009. Ms L’s initial disclosure was made during this time. The mother said in cross-examination that she does not now recall exactly when the disclosure was made. It is not clear from the evidence what the precise sequence of events was but the evidence in the mother’s case was that she received a number of phone calls from Ms L while at work. Although other dates are mentioned, it appears that the calls were made on 6 September 2011. She said that the maternal grandmother also rang her at work and told her that Ms L had rung her. Mr K makes no mention of a telephone call to his wife but gives evidence of at least two calls from Ms L to him and conversations between him and Mr I. The maternal grandmother told Dr E that she was unclear about how Ms L disclosed being raped and that Mr K “took care of that sort of thing.”
Doing the best I can, the sequence of events could have been that on the evening of 6 September 2009 Ms L rang the mother, who was at work and asked her mother to tell her school that she would be sick the next day or days. The mother said she told Ms L to ring the maternal grandmother, presumably because Ms L was living under the care of the maternal grandparents. The mother said that the maternal grandmother rang her to complain about Ms L refusing to go to school and told the mother that Ms L had to attend school as that was one of the conditions under which she was allowed to live with the maternal grandparents. Mr K said that Ms L spoke to him by phone and told him that she did not want to go to school and that he responded to the effect that she had to go to school as that was one of the conditions under which she was allowed by the maternal grandparents to stay overnight with Mr I and Ms J. Mr K said that there was more than one telephone conversation between Ms L and him that night and in the second or a subsequent conversation, Ms L said to him words to the effect: “I can’t take this anymore. [Mr Standen] has been raping me. I want to stay with [Ms J].” Mr K then spoke to Mr I and asked him to take care of his sister. For reasons that are not entirely clear, Mr K did not ring the mother about the disclosure. When asked why he said that he understood that Mr I rang the mother.
Ms L told Dr E that she also made a disclosure to Mr I and Ms J. It is not clear when that occurred.
It is the mother’s evidence that on the night in question she finished work at about 9.00 pm and drove to the home of Mr I and Ms J. When she arrived, the mother and Ms L argued for a period about Ms L attending school. The mother said that Ms L then went to the kitchen and sat on the floor, in the dark, rocking back and forth, holding her knees. The mother said that Ms L stood up and said “[Mr Standen] raped me” and collapsed into her arms.
The mother deposed[1]:
16.Following the events referred to in paragraph 15 above, I drove [Ms L] back to the home of my step-father, [Mr K] and my mother. When we arrived home my step-father was awake and [Ms L] said to him ‘[Mr Standen] raped me’…
[1] Paragraph 16 affidavit of mother sworn 25 August 2011.
That does not make sense, as on the version of Mr K, Ms L knew that earlier in the evening she had already told Mr K of the rape. The mother deposed: “Upon [Ms L] making these disclosures to me, she was immediately taken to the [S] Sexual Assault Unit at [S] Hospital ..”.[2] In cross-examination she said that Mr K took Ms L to the hospital on one of the following days. It transpires from the S Hospital records that the initial referral was the next day - 7 September 2009.
[2] Paragraph 15 affidavit of mother sworn 26 March 2010.
The mother said that on or about 1 October 2009 she moved out of the former matrimonial home with C and B and went to live with the maternal grandparents. Mr K said that move occurred in about mid September 2009.
The mother said that:
21.Since the events referred to in paragraph 20 above, [Ms L] has only shared with me that she was raped by [Mr Standen] at about the age of 7. She also made mention at another time that the assaults upon her by [Mr Standen] occurred on almost a daily basis, however she has never gone into any detail.
JIRT interviewed Ms L and she said that she had been indecently and sexually assaulted by the father for a period of up to 7 to 8 years in the family home; that the abuse started when she was about 7 and ended when she left the home at 15 years of age; that the abuse began with the father touching her vagina and that progressed to him penetrating her vagina with his finger. She said that he tried to get her to have sex with him and eventually he succeeded. She said he penetrated her with his penis many times but could not give an approximate number. She said that the father made her perform oral sex and that he licked her vagina. The abuse often occurred in bed while the mother worked at night. Ms L reported one occasion when the father assaulted her when her mother was at a hospital with C. She recalled that on that occasion B was also in the bed during the assault. Ms L also reported that the father made her have sex with him during a family holiday to Queensland. Ms L told the officers that the father would try something nearly every day. The JIRT records note that it appeared that the father has perpetrated very serious sexual assault on Ms L including oral sex and penile-vaginal intercourse.
Dr E spoke to Ms L about her allegations. Dr E records:
[Ms L] was unable to recall many events from her childhood. She had been a preschooler when she met [Mr Standen] and use to call him Dad. At fifteen years old she moved out of her mother’s home and [Mr Standen’s] home because she “couldn’t take it anymore”. [Ms L] explained she was referring to [Mr Standen’s] physical and sexual abuse of her. She described him as having ‘an anger on him’ and alleged he had slapped her across the face and dragged her by her hair. She declared this was “constant” behaviour and, while uncertain about the frequency because of her bad memory, she had suggested “weekly if not daily”.
Explaining she only gets “flashbacks”. [Ms L] asserted she has “blanked (the abuse) out”. She recalled an incident when she returned home from high school and was “grabbed by the hair and .. yelled at” by [Mr Standen] … Another time he had “belted her” for bringing bad luck: she had opened an umbrella in the house while he was watching a horse race he had bet on (and lost).
Stating [Mr Standen’s] sexual abuse of her started when she was about seven or eight, [Ms L] said it stopped when she left home. She alleged the abuse was “touching, intercourse”, at which times she felt “blank”. She had tried to keep busy and not be alone with him.
Flushing and crying, [Ms L] explained she was not comfortable talking about the abuse: it was “hard enough talking to JIRT”. She had told [Mr I] and his girlfriend before disclosing to her mother after she had been drinking and “got really upset and thinking about it”. JIRT had wanted to press charges on [Mr Standen] but did not have enough details from [Ms L], who was not ready to do more: it “hurts” to talk about and she “blank(s) out”. [Ms L] said she could not handle her counsellor’s attempts to “bring up memories” and she stopped going. She has also told her father, boyfriend and three close friends.
Attempts to question [Ms L] further resulted in her sitting holding herself tightly and being in tears. She said she has nightmares and “f… horrible” flashbacks, which are triggered by “random things”, and she cannot properly recall her childhood.
Later in the report, Dr E discussed Ms L’s allegations as follows:
At this assessment, [Ms L’s] presentation was suggestive of a young person who has been traumatised. She cannot tolerate discussing the alleged abuse to any extent and reported memory impairment for the alleged abuse, as well as for most of her childhood.
This is a traumatic pattern of memory loss. [Ms L’s] recall of “blank” feeling while being sexually abused suggests a disassociative response, a common defense at times for trauma. The subpoenaed DoCS and counselling files are supportive of her allegations. I could not detect in them significant discrepancies in narratives, which [Mr Standen] alluded to. However if abuse was occurring as frequently as [Ms L] reported, I would have expected her to have been symptomatic, and therefore noticed, before she left the family home.
[Ms L’s] disclosure was facilitated by the use of alcohol and precipitated by her mother’s statement she would have to return to the family home if she did not cooperate with the [maternal grandparents]. Significantly, she disclosed after [B] had turned seven, the age [Ms L] asserted the alleged abuse commenced. These factors support the veracity of her allegations.
Hypothetically, false allegations could have been made by [Ms L] out of anger [Mr Standen] had not allowed her to return home (after she initially chose to stay with the [maternal grandparents]), to assist her mother to leave an unpleasant situation (living separated in the same house as [Mr Standen]) and to make her mother focus on and attend to her.
Save for a reference to an apparent change in the father’s treatment of Ms L when she was approaching 15 years of age, there is no evidence from the mother about Ms L’s health or behaviour or affect prior to the time she left the parties’ home. In the JIRT notes it is recorded that the mother reported that historically Ms L was angry with her for working nights but that the mother otherwise saw no signs of abuse of Ms L.
In cross-examination the mother agreed that she said to the father prior to Ms L’s disclosures, that she would have Ms L make allegations about him.
Allegations in relation to B
It is the mother’s case that there is an unacceptable risk to B from the father. She fears both physical and psychological harm.
The mother told B that Ms L was raped by the father. It is not clear what B understands by that term. B told Dr E that it meant that her father had tried to hurt Ms L badly, possibly kill her. At paragraph 25 of her August 2011 affidavit, the mother records that about 2 weeks before she moved from the former matrimonial home to that of her parents in about September/October 2009, B woke in the middle of the night saying: “My vagina hurts.” Although he can no longer remember doing so, Mr K told the police that he heard B say words to the effect: “He did that to me too” when the family was at O Town Police Station on 4 October 2009. Although B was sitting on Ms L’s lap and next to her mother, there is no evidence from Ms L or the mother to that effect. B told JIRT that she never said those words.
B was interviewed by P Town JIRT and despite indirect and direct questions did not disclose that she had been assaulted by her father. JIRT thought she was truthful, was not withholding any information and do not believe that B has been assaulted. The JIRT notes reveal that Ms L appeared doubtful that B had been sexually abused by the father although she considered that it is possible that B had been abused but did not understand the behaviour to be abusive. JIRT’s concerns in relation to B arise from their findings about the alleged assaults on Ms L.
The observations of B by Dr E do not support the allegations. Dr E saw B on 12 April 2011, some 18 months after she last saw her father. Dr E reports:
[B] was clear she wants to see her father, misses him and [C] and loves him. She described him as a nice, caring Daddy, who ‘tucked (her) in and read (her) a bedtime story’. She said that he never screamed at her. Asked about Dad hitting, she said if they were really bad, she thought ‘he belted us’ but then added he would say this as a joke and she did not recall him doing it. She spontaneously stated he was caring and did not hurt ‘us’, herself and [C]. She was not sure about [Ms L] but observed they would chat and go out together.
And later:
Discussing why she said in the family interview she did not feel safe with Dad or trust him, [B] responded that she had not seen him for a long time and is ‘kind of worried’ he might say to her ‘come and live with me’, which would scare her ‘a little (because) I would not be allowed to see Mum.’ [B] described how, when Dad took [C], he had said to her ‘over and over … come here’. [B] had not wanted to go to him and held [Ms L’s] hand tightly. She repeated her fear that she might not see her mother if with Dad.
Conclusion
In Leighton & Carey [2010] FamCAFC 94 the Full Court discussed the principles relevant to findings about abuse in the following terms:
Principles relevant to findings of sexual abuse
28.In considering this appeal it is important we refer to the principles relevant to a finding of sexual abuse. In B and B (1993) FLC 92-357, the Full Court reviewed the authorities at length and said at 79,777:
In B and B (1988) FLC 91-957, Baker and Maxwell JJ (with whom Nicholson CJ agreed on this point) considered the role of trial Judges in the Family Court when determining custody and access cases, with particular reference to those cases in which allegations of sexual abuse had been made. The appropriate law to be applied was as set out in the following passage which appears at pages 76,923-76,924:-
‘The Family Court is a civil court in which trial Judges are required to hear and determine cases in the course of which evidence of the parties and their witnesses must be analysed and findings made based upon the civil standard of proof, that is to say, on the balance of probabilities.
It is not appropriate for Judges of the Family Court to conduct cases in which allegations of child sexual abuse have been made as criminal trials which seek to establish the guilt or innocence of one of the parties in relation to allegations of sexual abuse with the consequential result being that if the allegation be proved, access will be suspended whereas if the allegation be not proved then access will be ordered.
In the course of the hearing of a custody or access application, the court may make one of the following findings in relation to an allegation of child abuse:
(a)that the allegation is proved; or
(b)that the allegation is not proved; or
(c)there is insufficient evidence to determine either (a) or (b).
Any such finding, however, may not necessarily be the determinant factor in the ultimate decision. …’ …
29. In M v M (1988) 166 CLR 69 the High Court said at 76:
…it is a mistake to think that the Family Court is under the same duty to resolve in a definitive way the disputed allegation of sexual abuse as a court exercising criminal jurisdiction would be if it were trying the party for a criminal offence. Proceedings for custody or access are not disputes inter partes in the ordinary sense of that expression: Reynolds v. Reynolds; McKee v. McKee. In proceedings of that kind the court is not enforcing a parental right of custody or right to access. The court is concerned to make such an order for custody or access which will in the opinion of the court best promote and protect the interests of the child. …
Viewed in this setting, the resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the court’s determination of what is in the best interests of the child. The Family Court’s consideration of the paramount issue which it is enjoined to decide cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse. …
In considering an allegation of sexual abuse, the court should not make a positive finding that the allegation is true unless the court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v. Briginshaw. (footnotes omitted)
As to the standard of proof, the Evidence Act1995 (Cth) now incorporates the effect of Briginshaw in s 140 which provides:
Civil proceedings: standard of proof
(1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence; and
(b) the nature of the subject-matter of the proceeding; and
(c) the gravity of the matters alleged.
Turning to the issues before me, the evidence does not permit a finding at the required standard that the father sexually or physically assaulted Ms L or B. That could be seen as controversial in relation to Ms L because JIRT accepted her allegations and as a result, there is an endorsement in relation to the father on the COPS and KIDS databases. However, there was no prosecution of the father nor is there any ongoing investigation. Dr E noted things from her interviews that were consistent with the allegations (such as Ms L’s presentation at their meeting); and things that were not (such as the absence of evidence of any symptoms observed in Ms L during the parties’ cohabitation). Even then, Dr E had the advantage of seeing Ms L. The relevant evidence before me is all vague, hearsay evidence. Ms L did not give evidence in these proceedings. Finally, no party submitted that I could find that Ms L was assaulted by the father. Therefore the allegations are not proved.
In relation to B, JIRT did not accept that she had been abused and therefore no further action was contemplated by them. Ms L had doubts about B being assaulted. Dr E’s report focuses on any risk to B arising out of a finding that the father abused Ms L. The report does not identify anything in B that is consistent with her having any apprehension that her father might assault her. Again, no party submitted that I could find that B was assaulted by the father.
I take it that the finding sought on behalf of the mother is that there is an unacceptable risk to B of abuse in the event that the father has unsupervised time with her. In light of the evidence or lack of it, before me, I am not able to make that finding. Of course that is not the end of my inquiry in relation to appropriate parenting arrangements.
Additional Considerations
(3)(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
In his written submissions the father noted that C expressed a wish to live with him and not to spend time with the mother and that B has expressed the wish to spend time with him and with C.
C is 14 years of age and is completely aligned with and protective of his father. As with the rest of the family, C has experienced a very disrupted and stressful 2 years. He lost contact with his sister, mother and the maternal family and moved from a normal home environment to a basic campsite in the U Region. He left a selective high school where he was achieving well, for a comprehensive high school where he had no friends or connections. His primary care giver, his father, has been devastated by allegations of sexual assault, a reversal of financial circumstances, the loss of contact with his daughter and the stress of various legal proceedings. With the best will in the world the father could not insulate C from the impact on the father of those circumstances.
On the one hand C is of an age where his views will be treated with increasing importance by his parents and others but on the other, the last two years must have been very unsettling and are likely to have coloured his views. For example, Dr E said she suspects that C holds onto the insensitive remark by his mother (that he and B would be placed in a foster home if they didn’t live with her) as well as the apparent manhandling of him by Mr K on 4 October 2009, to validate his position.
B has consistently said that she misses and wants to spend time with the father and with C. The concerns she expressed to Dr E about the father were not concerns about abuse but about being withheld from her mother. The latter concerns may have been prompted by the mother or may simply have arisen from her own observations of the events of 4 October 2009. In any event she is 9 years of age and her views would not override concerns for her safety nor for that matter, the opportunity for a safe interaction with a loving parent.
(3)(b) the nature of the relationship of the child with:
(i) each of the child's parents; and
(ii) other persons (including any grandparent or other relative of the child);
In his written submissions the father said that until October 2009 he was the primary carer for the children and that he continues to be the primary carer for C.
For all that the mother criticises the father for his lack of interest in paid employment, the arrangement put in place for the family for the last 10 years of the marriage had the father at home in the role of primary care giver and the mother as the breadwinner. There is little doubt that the father is C’s primary attachment figure. It is less clear about B. She has lived with the mother for the last 2 years and is clearly attached to her.
Significant concerns are expressed in relation to the relationship between the father and C. With the allegations and relocation, the father has been very isolated since October 2009. On the other hand the father and C have been living closely together. Life in a caravan does not allow for much separation between the father and C. Dr E said that the father presented as over-identified with C, with whom he has an enmeshed relationship. Dr E said that mutual dependency has developed between the father and C and this is concerning as it places C in a caretaking role, looking after his father’s emotional needs. In his oral evidence the father spoke about C breaking down when he (the father) cried in front of C.
Given that C is protective of his father, any improvement in his relationship with his mother will be difficult while she holds and displays such a strongly negative opinion of the father.
Dr E opines that B is attached to her parents. Although B’s wishes are affected by her strong desire to spend more time with C, she indicated to Dr E that she misses her father because of their good past relationship. It is remarkable that B has displayed and continues to express positive feelings for her father, despite a separation of 2 years. That may be a reflection of their strong attachment. Dr E noted that the maternal family are angry with the father and revile him. Perhaps the father has not been vilified to B or in her presence, in the mother’s household.
C reportedly has a very poor relationship with and a fear of Mr K. Among a number of unwise steps taken by the adults on 4 October 2009, it was unwise for Mr K to physically intervene to prevent C getting into the father’s car. Dr E did not interview or observe Mr K. He gave evidence before me and I have no reason to doubt that he wants the very best for his step-grandchildren. In cross-examination he said he would agree to absent himself from his H Town residence to facilitate time between the children and each other and the mother and the maternal grandmother. That might involve retiring to the substantial shed on the property or something more. That is a very child focussed concession from someone who does not believe that he has done anything to warrant that exclusion. Sadly, the price of the fragile steps proposed towards restoring a proper relationship between the mother and maternal grandmother and C requires that concession.
(3)(c) the willingness and ability of each of the child's parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
At various times, the parents have not been willing or able to promote the other parent’s relationship with one of the children.
In his written submissions the father said that he has sought to encourage the relationship between C and his mother and on an interim basis has sought that B continue to live with the mother. Although he has directed C to take certain steps towards a restoration of his relationship with his mother and maternal grandmother, the father has still respected C’s wishes.
At various times since September 2009 each of the parents sought to exclude or restrict the other parent from one or both of the children. That has occurred in the context of very serious allegations of sexual abuse. Indeed, for two years there was an AVO that prevented any direct and most indirect communication between the parties. The father pointed out that he has done more of recent times to try and promote contact between C and the mother or the maternal grandmother. The mother refers to the attempts she made to make contact with and spend time with C. The mother has steadfastly resisted time between B and the father unless supervised.
(3)(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
Since October 2009, C has lived with the father and B with the mother. Although it is proposed by both parties that those arrangements continue, in each case the parties proposed that time be spent by the children with the other parent and each other.
Her observations of the events of 4 October 2009 have left B with a fear of being retained away from her mother. It is that fear, rather than any fear of abuse by her father, that Dr E observed in B.
To his credit, the father conceded that his current accommodation, while barely viable for himself and C, would not be appropriate for B.
Dr E recommends that the father’s time with B be supervised for the time being and only supports that time if the Court does not “find him to be an unfit person to be in B’s life, by virtue of him being a paedophile.”
(3)(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
Even though the only effective contact arrangements have been between C and B, the requirement for supervision has added cost and inconvenience to the living arrangements since October 2009. The mother has not and will not disclose her residential address. The father lives at Q Town in the U Region and the maternal grandparents live further down the U Region at H Town.
In relation to counselling for C and the mother, the father seeks that the mother contribute towards the cost of his travel at the rate of 80 cents a kilometre, if the counselling is outside N Town.
Unfortunately the cost of the contact centres, any costs of counselling and the costs of travel have the potential to jeopardise compliance with the orders I make. The father is on a fixed and limited income and although he understated the impact, he has gambled substantial funds in the past and continues to gamble. Even without any gambling he will not have much capacity for discretionary expenditure. Some of his costs could be ameliorated if the mother was responsible for transporting C, but at this stage that is not practicable. The reported outburst by the father in the court room after the trial reinforces my concern that the financial aspects of the parenting regime will have the potential to derail any progress towards a less restrictive time spent between the children and the parents. The courses proposed by the parties both call for a change in approach and attitude from the parents and will be difficult enough without the finances getting in the way. In the normal course such issues could be addressed in the context of child support but that is not without its complications. Any orders that moneys change hands – for example, that the mother contribute to the father’s travel costs, would require that the parties communicate or come together. The other aspect of this issue is that it is important that the children see that each of the parents considers the arrangements a priority.
In my view the order that is most likely to avoid these fragile arrangements being frustrated due to the father’s lack of funds is that the mother pay the costs of counselling and contact centres. That will leave the father to fund just his part of the transport costs.
Hopefully, if C’s relationship with the mother and members of her family improves and if the supervision of the father’s time with B results in a reduction in concerns for her, the requirements (and cost) of supervision can be removed in the not too distant future.
(3)(f) the capacity of:
(i) each of the child's parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
In his written submissions, the father said that until October 2009 he was the primary carer for both children and that he continues to be the primary carer for C.
Dr E said that the father presented to her as a vulnerable man with a history of multiple traumatic experiences. He has a significant history of depression, anxiety with panic attacks and agoraphobia. He also suffers with high blood pressure, high cholesterol and type II diabetes. He told Dr E that he has a difficult style of interaction with others: he is judgmental, quick tempered and can be verbally aggressive. Dr E said that he has a paranoid personality style of operating in the world.
The father acknowledged to Dr E that although he never abused her, he had treated Ms L badly at about the time of her 15th birthday, leading to her leaving home.
The father has an ongoing gambling addiction and is taking no active steps to address it. At the time of the hearing, the father thought that he gambled about $60.00 per fortnight but maybe less and maybe more. His income is of the order of $700 per fortnight by way of a Newstart Allowance and child support. He says that he does not gamble money required for food or necessities, but the cross-examination by the ICL on this issue effectively revealed that the father’s gambling is a serious problem.
The father acknowledged that his current accommodation is not adequate. He lives on a 2 acre block near the U Region. The improvements are temporary and include a caravan, two tents, a pit toilet and a camping shower. The caravan has two sleeping areas separated by a kitchen area. C has one of those areas, separated from the rest by a curtain. From answers he gave in cross-examination on behalf of the children, it is possible that the father does not have and would not get approval from the local authorities to live permanently at the site. The father has a generator for power, a gas fridge and a washing machine sitting out in the open. There is no town water and the water supply for the site is a 200 litre tank and some smaller containers. The father refills the tank daily by making several trips to the water supply of neighbours with 25 litre containers. The father and C mostly take their showers at the local swimming pool. Despite the orders formally sought by him at the commencement of the trial, he does not expect and would not allow B to stay overnight at the property. I gather that he considers the accommodation to be temporary and not suited to properly accommodate B. Indeed, the father said that, if at any time C would prefer to live elsewhere, for example with his mother, he would respect and facilitate that wish. Those attitudes reflect credit on the father.
As to his own plans the father gave somewhat inconsistent evidence. I think the gist of his evidence was that if planning laws permitted he would like to subdivide his 2 acre block into three parcels; to sell two blocks; and use the proceeds to erect a dwelling on the remaining block. He said something to the effect that if that did not happen by next winter then he would sell up and buy elsewhere on the U Region. He was pressed about that in cross-examination and would not concede that it was unlikely that he would have zoning, subdivision and construction completed by winter 2012. I gather that the father inherited the block from his mother. The father and C moved onto the block in February 2011. He lives on the block because when he came to leave his accommodation in Sydney the Housing Commission waiting list was 2 years and he could not afford to rent a house. At times he could have afforded to rent a unit but C has a dog and so that was not an option. The father says that C does not want to return to Sydney.
It is important to record that being impecunious may not be the father’s fault or substantially his fault. The parties’ arrangement during the marriage and since had him as the homemaker and the mother as the breadwinner. The mother says she is aggrieved about that arrangement but concedes that was the arrangement. The mother withdrew some of her financial support in October 2009. Whatever else might be said, the fact of the dramatic separation of the parties, the allegations made against the father and the resultant endorsements about the father on the COPS and KIDS databases would not have improved the potential for the father to return to paid employment. Quite the contrary. It is the father’s evidence that he has nevertheless made enquiries about securing a job but has been unsuccessful.
Although the advice from the Principal of V School suggests that the father is otherwise doing a good job, under the father’s supervision, during 2011 C had 28 partial absences and 23 whole day absences from school up to 6 September.
During the course of the mother’s cross-examination, I asked about the school attended by B. Counsel for the mother said that the name of the school was not known to the father and that that was deliberate. The ICL said the father may well know and the father agreed, saying that the school’s principal had accidentally rung him. I was then told the name of the school. From the bar table, the father said to the mother in the witness box - “I was only tricking you”. The mother was greatly upset by those words. The father apologised for the incident. If the father did not already know the name of the school then the incident is quite sinister. If the father did know the name of the school, the incident reveals him to be immature and vindictive.
As to the mother - during the course of her cross-examination the mother was asked why she stopped making mortgage payments at a point after separation and she said words to the effect that the father was responsible for C at that time and it was a matter for him to make the payments. In circumstances where at that time the father had not been in paid employment for about 9 years, that seemed to be more vindictive than it was reasonable or child focussed. It is entirely hypocritical for the mother to withdraw financial support for the father’s household and then complain about the circumstances of that household.
It is an understatement to say that the mother does not have a good word to say about the father. During her oral evidence she was asked about critical comments she had made about the father to Dr E. The mother said that at the time she was very, very emotive and had described him to Dr E with words to the effect that he is a vile, disgusting human being that takes a child’s childhood away from them; does not deserve anything; the fact that he did not strive for anything, he gambled and he destroyed the family time and time again. In response to a question from the ICL she said that those criticisms of the father remain valid today. She said that the father did not show the children a good ethic.
In those circumstances it will be difficult for her to promote him or a relationship with him, to either of the children.
Dr E observed the mother to be cooperative and to speak with some pressure of speech, giving many details. She had a reactive affect and was somewhat emotionally labile. Dr E noted that the mother’s first interview with her was after 3 hours of sleep while she was working night shift but that when she saw her again 6 weeks later, the mother continued to use a dramatic, colourful style of talking. I found the same in her oral evidence before me.
The mother told Dr E that she told B and C that Ms L had been raped by the father. She said that “in a fit of utter stupidity, (I) cracked”. Although the mother could not recall telling the children when she collected them from school in September / October 2009 that they might go to a foster home, she conceded that it was possible and that C’s memory of the incident could be correct. She also acknowledged that after separation she had made the “throw away, stupid comment” to the father that she would “get Ms L to say something” against the father but was adamant with Dr E that it was not said with sexual abuse allegations in mind. There is no evidence as to whether she did ask Ms L or how Ms L reacted to any such request.
Dr E opines that the mother had been a distant parent to her young children, working long hours, and contributed to the difficulties with C by her insensitive comments. Dr E reported:
There are other indications, including this assessment, that [Ms Standen] does not maintain appropriate discrete boundaries, as she inappropriately spoke openly in front of her children. She was dismissive of the significance of fathers for children and could well have made the belittling comments to [Mr Standen] he attributed to her.
I have no doubt [Ms Standen] wishes to repair her relationship with [C]. I do not believe she has consciously promoted [Ms L’s] allegations and she is now being appropriately protective of [B]. She would be highly anxious if [B] was in the same house with her father overnight: any such orders would not be in [B’s] interest.
Again, Dr E’s opinions have not been directly challenged by the parties.
Mr K says that he did not assault C on 4 October 2009 but he concedes that he tried to place his body between C and the father’s car on that day. It appears that C is implacably opposed to spending time with Mr K.
(3)(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
C is 14 years of age and in Year 8 at V School, a comprehensive State high school. In 2010 he attended Suburb T High School, an academically selective State high school. Reports for Year 7 suggested that he performed well compared to State averages in that year. In respect of 2011, the Principal of V School told Dr E that C has a good attitude, is in the top classes and keeps up with his work. He has friends within a group of boys with whom he is quietly confident. He comes to school well groomed and provisioned but has above average absences.
The information about B is limited, presumably because of the mother’s efforts to keep the details of her residence and school from the father. Dr E reported that B presented as:
a very pleasant, nearly nine year old who is very attached to her parents, siblings and extended family. Her emotional development has been compromised by the current family situation, in which longstanding schisms between family members have become entrenched by [Ms L’s] allegations.
(3)(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
This does not apply.
(3)(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
In his written submissions the father said that at all times he has sought to facilitate arrangements between the children and the parents. On the other hand he contends that the mother has failed in her responsibility to facilitate the children’s time with him and that she sought to undermine his relationship with the children.
It follows from the earlier findings that each of the parents has behaved badly in the presence of the children. Having said that, each of them has come under considerable pressure.
On the evidence I cannot find that the father sexually abused B.
Each of the parties took unilateral action when they should not. Each asserted that they did so to protect the children or one of them. In early October 2009 the mother collected the children from school and took them to live with their grandparents. Citing an alarming telephone call from C as the reason, the father travelled to H Town on 4 October 2009 and took matters into his own hands on that day. If it is true that Mr K assaulted C when trying to prevent him getting into his father’s car, the opportunity for that assault only arose because the father attended at H Town. In each instance if there had been some negotiation and if unsuccessful, mediation or Court intervention, then confrontation and stress would have been avoided.
Although the father asserts that he has done all that he could to promote the relationship between C and his mother, I doubt that is true. In part, that is because the father does not have a sophisticated armoury of strategies to do so. In cross-examination, he spoke about telling C to ring or accept calls from his mother or grandmother and that ‘they’ wanted C to reach out to his mother. I doubt that C was under the impression that it was his father’s heartfelt wish that he reconcile with his mother. Perhaps more importantly, it would be extraordinary if the father was able to convincingly promote the mother to C, while she and others in her family, openly revile him. This issue was canvassed during the course of submissions from the ICL. It is expected that parents will maintain an undiminished focus on the objective best interests of their children, but some account must be taken of the real world.
Nevertheless, the father repeatedly said to the Court and therefore I accept, that he believes that it is in C’s interests to have a relationship with his mother. It would be of assistance if the father obtained professional advice about assisting C in this regard and it would assist in that process if the mother did not repeat her views about the father to him or in the presence or hearing of either child.
As is referred to above, the mother conceded that she has said things to the children that she should not have said. She told them that Ms L was raped by the father. It is likely that she told the children that they could be placed in a foster home if they did not come with her. In each case those incidents represent the mother placing unfair and unacceptable pressure on the children.
It is a matter of conjecture as to how B has retained her positive attitude to her father. One possible explanation is that notwithstanding her views, the mother has not demonised the father to B. Given the strength of the mother’s stated opinion of the father and the inappropriate remark she has made to the children, it is difficult to believe that she could promote the father to B.
(3)(j) any family violence involving the child or a member of the child's family;
In his written submissions the father noted that he denies the allegations that he sexually abused Ms L and that he acted inappropriately with either C or B. I cannot find that the father assaulted Ms L or B.
The father asserts and Mr K denies that Mr K assaulted C on 4 October 2009. I cannot make a finding about that allegation but I accept that in attempting to block C’s path to the father’s car, Mr K is likely to have come into contact with C. That would have been better not done.
The mother says that she and the father argued extensively during their relationship and that they pushed each other.
(3)(k) any family violence order that applies to the child or a member of the child's family, if:
(i) the order is a final order; or
(ii) the making of the order was contested by a person;
P Town Local Court made an order on 15 October 2009 for the protection of the mother, the maternal grandmother and B. The father consented to the order on a without admissions basis. That order was in place for 2 years. The order restrained the father from:
a) assaulting, molesting, harassing, threatening or otherwise interfering with the protected persons or those in a domestic relationship with them;
b) engaging in any other conduct that intimidates them;
c) stalking them;
Additional Orders:
- going within 100 metres of their residence or work premises including [W Street, X Town];
- approaching or contacting them by any means other than through a legal representative.
There is no current Apprehended Domestic Violence Order.
(3)(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
The parties have a very poor relationship and virtually no capacity for direct communication or negotiation. In those circumstances one could not be optimistic about my orders putting an end to litigation, particularly in relation to B. It is for that reason that the ICL has proposed a review at t he end of 2012.
(3)(m) any other fact or circumstance that the court thinks is relevant.
Nothing comes to attention here.
Parental Responsibility
Parental responsibility is defined by s 61B of the Act to mean “all the duties, powers, responsibilities and authority which, by law, parents have in relation to children”.
If no order is made in respect of parental responsibility then the position as to the parents of a child is as follows:
SECT 61C
Each parent has parental responsibility (subject to court orders)
(1) Each of the parents of a child who is not 18 has parental responsibility for the child.
Note 1: This section states the legal position that prevails in relation to parental responsibility to the extent to which it is not displaced by a parenting order made by the court. See subsection (3) of this section and subsection 61D(2) for the effect of a parenting order.
Note 2: This section does not establish a presumption to be applied by the court when making a parenting order. See section 61DA for the presumption that the court does apply when making a parenting order.
Note 3: Under section 63C, the parents of a child may make a parenting plan that deals with the allocation of parental responsibility for the child.
(2) Subsection (1) has effect despite any changes in the nature of the relationships of the child's parents. It is not affected, for example, by the parents becoming separated or by either or both of them marrying or re-marrying.
(3) Subsection (1) has effect subject to any order of a court for the time being in force (whether or not made under this Act and whether made before or after the commencement of this section).
Note: Section 111CS may affect the attribution of parental responsibility for a child.
An order for shared parental responsibility has the following effect:
SECT 65DAC
Effect of parenting order that provides for shared parental responsibility
(1) This section applies if, under a parenting order:
(a) 2 or more persons are to share parental responsibility for a child; and
(b) the exercise of that parental responsibility involves making a decision about a major long-term issue in relation to the child.
(2) The order is taken to require the decision to be made jointly by those persons.
Note: Subject to any court orders, decisions about issues that are not major long-term issues are made by the person with whom the child is spending time without a need to consult the other person (see section 65DAE).
(3)The order is taken to require each of those persons:
(a) to consult the other person in relation to the decision to be made about that issue; and
(b) to make a genuine effort to come to a joint decision about that issue.
(4) To avoid doubt, this section does not require any other person to establish, before acting on a decision about the child communicated by one of those persons, that the decision has been made jointly.
Presumably that must also apply to equal shared parental responsibility.
Discussion
Section 61DA provides:
FAMILY LAW ACT 1975 - SECT 61DA
Presumption of equal shared parental responsibility when making parenting orders
(1)When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.
Note: The presumption provided for in this subsection is a presumption that relates solely to the allocation of parental responsibility for a child as defined in section 61B. It does not provide for a presumption about the amount of time the child spends with each of the parents (this issue is dealt with in section 65DAA).
(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parent's family (or that other person's family); or
(b) family violence.
(3) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.
The ICL and the mother propose that each of the parents have sole parental responsibility for the child living with that parent. The father seeks an order for equal shared parental responsibility.
As to the presumption, there are very worrying allegations in these proceedings but for the reasons set out earlier, I am not able to make a finding that there are reasonable grounds to believe that the father has engaged in abuse of Ms L or B or has exposed the children to family violence.
Conclusion
The presumption that the parents having equal shared parental responsibility would be in the children’s best interests, does apply.
It is agreed that B will continue to live with the mother and C will continue to live with the father. C is currently estranged from the mother and if improvements are to be made in their relationship much work will need to be done. Until about 6 weeks before the trial the parents were precluded by an AVO from communicating directly with each other. The mother has a very poor opinion of the father.
I accept the sincerity of the father’s application but I think he acknowledged during the course of submissions that equal shared parental responsibility would not be practicable. In those circumstances I am satisfied that it would not be in the best interests of C and B for their parents to have equal shared parental responsibility for them. Hope springs eternal and perhaps the circumstances will change in the future but for the time being the father will have sole parental responsibility for C and the mother, for B.
Living Arrangements
There will not be an order for equal shared parental responsibility. Therefore I must decide what living arrangements would be in the best interests of C and B and the consideration of particular patterns of living arrangements is not required by the legislation.
It is not in dispute that C will continue to live with the father and B with the mother. Independent of the agreement of the parents, no other arrangement is practicable. C is estranged from the mother and even if the father had suitable accommodation for B, the mother is implacably opposed to her spending unsupervised time with the father.
The contentious issues relate to the circumstances under which the children spend time with the parent with whom they do not live.
It is common ground that arrangements for C and B to spend time with each other at a contact centre be resumed and that those occasions occur at the G Town Contact Centre. It proposed on behalf of the children and the mother that until those arrangements are put in place, the children see each other at the D Town Contact Centre. Apart from the informal agreement struck during the trial, no similar proposal was put on behalf of the father. I will make the order sought on behalf of the children and the mother.
Although he also proposed that C spends fixed periods with his mother, the father proposed that all arrangements between C and the mother be subject to C’s wishes. In circumstances where it is agreed that it is in C’s interests to have a restored relationship with his mother, I will not place that restriction on the arrangements.
There are different proposals for B to spend time with the father. The father proposes that he have 10 minutes with her at the commencement of the sessions where C and B spend time with each other. The proposal on behalf of the children and the mother is that the father be included for the first hour of the sessions that C and B are together and that she be included for the second hour.
The proposal of the ICL and the mother will have more time between each child and the parent from whom they have been separated and is to be preferred for that reason.
The father seeks that he be given warning if Mr K is to be in contact with C, in order for him to prepare C. Rather than giving notice, in the circumstances it would be sensible to avoid that contact in the first instance unless the parties otherwise agree. However, by 31 May 2012, unless the parties earlier agree, the cycle of weekend contact will include the children spending time at the H Town property every fourth week. In my view, it is not practicable to exclude Mr K from his home on those occasions. The orders proposed by the ICL leave the issue of the commencement of the H Town weekends prior to 30 April 2012 to a counsellor. I will extend the proposed time frame by one month (to 31 May 2012) to allow for the fact that some weeks have been taken up in consideration of this judgment. I prefer that discretion about an earlier reintroduction of time with the maternal family be left to the parties, rather than involving the counsellor, although the parties would no doubt be assisted and guided by the counsellor.
It is common ground that there should be counselling to assist in restoring C’s relationship with his mother and it appears to be agreed that if practicable the counselling should take place at or near N Town.
The ICL seeks that the parties each pay one half of the costs of the contact centres. For the reason set out above I will order that for the time being, the mother meet the costs of counselling and contact centres. That will leave each of the parties with their own transport costs.
The father seeks an order that the mother have anger management counselling because of a road rage outburst. I am not sure what the father means by that. In any event I will not make that order. If a recommendation for the mother to undertake individual or group counselling comes out of the counselling sessions for her relationship with C then that is a matter to which the mother should attend.
Although he formally seeks a restraint on interstate and overseas travel, I understood that during the course of submissions the father agreed to the travel orders proposed by the ICL. I will make those orders.
I do not understand the other orders sought on behalf of the children to be controversial and shall make them.
Conclusion
I have no doubt that these are loving parents who want the best for C and B.
It is agreed that C will continue to live with the father and B with the mother. It is agreed that the children should see each other. It is agreed that time between B and the father should be restored. Given the concerns of the mother, the unchallenged recommendations of Dr E and the fact of the long separation of B from the father, it is appropriate that, for the time being, their time be supervised. As it is agreed to be in his best interests for C to have a relationship with his mother I will not restrict their time together to arrangements that accord with C’s wishes. In the circumstances and for the time being the mother will bear the main financial costs of the arrangements.
The orders are complicated and may require minor adjustments. I will allow the parties to restore the matter before me within 28 days of the date of delivery of judgment, or such further time as they might agree, in relation to any agreement about a change to the wording of the orders or an argument that the wording does not reflect these reasons.
I certify that the preceding one hundred and sixty eight (168) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Loughnan dated 19 December 2011.
Associate:
Date: 19 December 2011
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