Stapleton and Hayes
[2009] FamCA 437
•25 May 2009
FAMILY COURT OF AUSTRALIA
| STAPLETON & HAYES | [2009] FamCA 437 |
| FAMILY LAW – CHILDREN – Parenting proceedings – sexual abuse allegations – standard of proof – investigations by JIRT and DOCS – consideration of children’s statements, adult influence, medical evidence, professional opinion, anti social traits - issue of mother’s mental health – risk of psychological and emotional harm – children to live with their father – s 65L order |
| Family Law Act 1975 (Cth) Evidence Act 1995 (Cth) |
| M v M (1988) 166 CLR 69 W v W (Abuse allegations: unacceptable risk) (2006) FLR 129 Briginshaw v Briginshaw (1938) 60 CLR 336 Taylor-Black & Vasser (2008) FamCA 335 Re B (Children) [2008] UKHL 35 Director General of Department of Community Services; re Sophie [2008] NSWCA 250 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 Palmer v Dolman [2005] NSWCA 361 |
| APPLICANT: | Ms Stapleton |
| RESPONDENT: | Mr Hayes |
| INTERVENOR: | Department of Community Services |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid Commission NSW |
| FILE NUMBER: | SYC | 2750 | of | 2007 |
| DATE DELIVERED: | 25 May 2009 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Moore J |
| HEARING DATE: | 18 September 2007, 16, 24 April, 14 May, 29 September, 9, 10, 13, 14, 15 October, 20, 21, 24, 25 November 2008 & 18 February 2009 |
| WRITTEN SUBMISSIONS: | 5, 12 December 2008, 9, 16 January 2009 & 11 March 2009 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Druitt |
| SOLICITOR FOR THE APPLICANT: | Matthews Folbigg |
| THE RESPONDENT FATHER: | In person |
| COUNSEL FOR THE INTERVENOR: | Mr Hoy SC |
| SOLICITOR FOR THE INTERVENOR: | Crown Solicitor |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Ward |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid Commission NSW |
Orders
All previous parenting orders are discharged.
The father is to have sole parental responsibility for the children N born … July 2000 and E born … September 2001.
The children are to live with their father.
Not earlier than one month after the making of these orders the children are to spend time with their mother supervised at the H Contact Service or other agreed supervised setting if that service is not available for any reason for three consecutive months on two consecutive days in each month and for a minimum of two hours each day at dates and times provided by H Contact Service or other agreed supervisor.
Upon the completion of the three month period referred to in 4 the children spend time with the mother as follows:
(A) during school terms:
(a)for two weekends each term [the 2nd and 8th unless otherwise agreed in the H area, the mother or her nominee to collect the children from school on Friday at the commencement of the period and to return them to school on Monday at the conclusion of the period;
(b)for one weekend [the 5th unless otherwise agreed] in the Sydney Metropolitan area, the mother or her nominee to collect the children from the father or his nominee at 9am Saturday from Central Railway Station and the mother or her nominee to return the children to the father or his nominee at 5pm on the Sunday.
(B) during school holidays:
(c)for the holidays at the end of the 1st and 3rd terms from the last day of school to the final Wednesday of those holidays, the mother or her nominee to collect the children from school at the commencement of the period and the father or his nominee to collect them from the G Contact Centre or other agreed venue at the conclusion of the period;
(d)for one half of the holidays at the end of the 2nd term and during the December/January school holiday period, at times to be agreed and failing agreement:
(i)for the first half in years ending in an even number, the mother or her nominee to collect the children from school at the commencement of her time with the children and the father or his nominee to collect the children from the G Contact Centre or other agreed venue at the conclusion of the period;
(ii)for the second half in years ending in an odd number, the mother or her nominee to collect the children from the H Contact Centre or other agreed venue at the commencement of the period and the father or his nominee to collect the children from the G Contact Centre or other agreed venue at the conclusion of the period;
(C) at other times:
(e)if the mother is in the H area and not otherwise spending time with the children according to these orders, for three hours with both children on each of the children’s birthday(s) at times agreed and failing agreement from after school until 7pm if it falls on a school day and from 3pm to 7pm if not on a school day;
(f)at other times agreed between the parents in writing.
The father is to facilitate the children communicating with their mother while in his care by telephone each Tuesday and Thursday at about 6pm by assisting the children to call their mother at that time.
The mother is to facilitate the children communicating with their father while in her care by telephone each Tuesday and Thursday at about 6pm by assisting the children to call their father at that time.
The mother is restrained and an injunction is hereby granted restraining her from presenting either of the children for any psychiatric or psychological consultation or for any medical examination in furtherance of an allegation of sexual abuse or from presenting either of the children for counseling related to any allegation of sexual abuse without the written consent of both parents or failing that the written permission of the New South Wales Department of Community Services.
The father is to
(i)forthwith advise the mother in writing of the name of the school at which he enrolls the children at any time and the mother will be entitled to obtain directly from the school copies of all reports related to the children’s progress and any newsletters or other material provided by the school to all parents; and
(ii)keep the mother informed of any non-routine medical treatment sought for the children and provide at the same time the name and contact details of the treating medical practitioner; and
(iii)keep the mother informed of any other major decisions taken in relation to the children’s upbringing.
The ICL is at liberty to provide to the school a copy of these orders.
If further allegations of sexual abuse of the children should arise in the future, either parent or the New South Wales Department of Community Services as a party to these proceedings is authorized to provide a copy of these orders and the Reasons for Judgment delivered 25 May 2009 to the New South Wales Police or any other authority responsible for investigating the allegations.
The Director-General of the Department of Community Services is to ensure that a copy of these orders and these Reasons for Judgment are placed on the file maintained by the Department and to ensure the existence and availability of these documents are recorded on any database referable to the children.
Pursuant to Section 65L of the Family Law Act 1975, a Family Consultant nominated by the Director, Child Dispute Resolution Services of the Family Court Sydney Registry is appointed to report if so requested by the Court and with the implementation of these orders as necessary, including but not limited to:
(i)facilitating the changeover of the care of the children’s care to their father;
(ii)in consultation with the Independent Children’s Lawyer advising the children of the orders;
(iii)making recommendations to the father for any appropriate referral for counseling of the children as may be required for the transition to his care.
The Director-General is requested to facilitate the implementation of these orders as may be necessary.
IT IS NOTED that publication of this judgment under the pseudonym Stapleton & Hayes is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 2750 of 2007
| MS STAPLETON |
Applicant
And
| MR HAYES |
Respondent
REASONS FOR JUDGMENT
[To assist editing for anonymity and ease of reference the parents will be referred to in these Reasons as ‘mother’ or ‘father’. For the most part the children will be referred to by the initial of their first name and the other children’s names will be edited for anonymity later]
Proceedings
This decision concerns the future arrangements for two young children – N (8) born in July 2000 and E (7) born in September 2001 – more particularly, which parent they will live with, what time they will spend with their other parent and the circumstances in which that will occur. There is a raft of other proposals to be considered, not only as put by the parents but also by the Independent Children’s Lawyer [ICL] and the Director-General of the Department of Community Services [DOCS] who took up the Court’s request to intervene in the proceedings after the report of the Court appointed psychiatrist, Dr R, became available. A good deal of the evidence revolved around the allegation that the children were sexually abused while in the father’s care.
Unfortunately the conclusion of the case has been prolonged. Set for final hearing over a number of days in October, it had to be adjourned part heard to conclude the evidence when later dates could be allocated which also proved to be insufficient and a timetable had to be set to take submissions in writing. The last of the submissions came from counsel for the mother but then she lodged further material independently of her legal representatives and the status of that had to be clarified. In the result an opportunity was given to the mother’s counsel to consider the material provided and to withdraw and amend the earlier submissions. That was done but there was further delay because copies were not sent to the correct email address of all other parties.
Attached to the amended submissions for the mother are several journal articles which are the subject of three brief references in the body of the submissions [pp 2, 22 and 47]. Yet the articles cited are not amongst the submissions that replaced those made first in time. The deficit is of no consequence.
The father argues they are irrelevant to the decision, he objects to them and he puts the case for their exclusion on several bases: nothing is known of the credentials of the authors; none of the articles include sufficient statistical analysis or discussion of variation of results around the mean to ascertain the degree of significance of their findings; the articles have not been written for the benefit of the Court and nor have the authors any information about this case; there is nothing to say the children here come within the subset of the population sampled and discussed there; in some instances there is discussion of topics completely unrelated to issues here; they all begin from the premise that sexual abuse occurred or is likely to have occurred; and there is nothing in any of them to reflect the impact of behaviour such as the mother has exhibited here.
Having read the articles, the argument is well founded. As a general observation it can be said without controversy that on the topic of sexual abuse of children there is a vast array of published journal articles from a variety of professional fields of training and expertise approaching the topic from one perspective or another. The few articles selected here add nothing to the task of reviewing the facts and analysing their import for the central decision about what arrangement will be in the best interests of these children and that deficit is not overcome by the fleeting references to them in the body of the submissions. Quite apart from the fact that no one - including the appointed expert - can now comment upon or test their fundamental underpinnings or relevance, no sufficient relevance is apparent from the submissions they accompany. Being of general interest but of no specific or sufficient relevance here, there will be no further reference to them.
Law
First, to the Family Law Act 1975. In making these decisions the best interests of the child are the paramount consideration [s 60CA] and the process is guided by certain objects and underlying principles [s 60B(1)(2)]. To decide what is in the child’s best interests the Court must [save for a consent order when the Court may] consider the matters identified as ‘primary considerations’ and ‘additional considerations’ [s 60CC (2) which in some instances are elaborated [s 60CC(3)(4)]. However, there is a presumption imposed about best interests; that is, it is in the child’s best interests for the parents to have equal shared parental responsibility [s 61DA(1)]. This does not apply where there are reasonable grounds to believe a parent has engaged in child abuse or family violence [s 61DA(2)] and it may be rebutted if the evidence establishes equal shared parental responsibility would not be in the child’s best interests [s 61DA(4)]. Parental responsibility is about major decisions, not time, but if a parenting order provides, or is to provide, for equal shared parental responsibility there are implications for decisions about time. In that event, there is an obligation to consider whether equal time with each parent would be in the child’s best interests and ‘reasonably practicable’ and, if it is, to consider making an order to provide for that outcome [s 65DAA(1)]. If not, there is an obligation to consider whether the child spending ‘substantial and significant’ time with each parent would be in the child’s best interests and ‘reasonably practicable’ and, if it is, consider making an order to achieve that outcome [s 65DAA(2)]. The factors relevant to determining what is ‘reasonably practicable’ are stipulated [s 65DAA(5)] and ‘substantial and significant time’ is defined [s65DAA(3)].
Next, to some relevant case law. Given the focus on allegations about sexual abuse, the submissions of counsel for the ICL cite the decision of the High Court in M v M (1988) 166 CLR 69 at 77 and of the Full Court of this Court in W v W (Abuse allegations: unacceptable risk) (2006) FLR 129 at [105] and [111] and offer a brief statement of the ratio of both cases. These references are adopted without elaboration in the submissions for the Director-General and the mother.
However, the father, who represents himself, is a little more expansive. He cites this passage from the High Court decision of Briginshaw v Briginshaw (1938) 60 CLR 336 at 362:
‘The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issues has been proved to the reasonable satisfaction of the tribunal. In such matters “reasonable satisfaction” should not be produced by inexact proof, indefinite testimony, or indirect inferences.”
I should say that this passage is prefaced by what follows, which I think gives a little more context:
‘Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved.’
He then cites the first instance decision of Taylor-Black & Vasser [2008] FamCA 335 and he quotes a passage [165] from the judgment which is obviously directed to the two ‘primary considerations’ to be taken into account in the best interests evaluation and demonstrates the trial judge to be identifying the inherent tension that can arise between those two considerations - as it does in this case. He agrees M v M reflects the principles to be applied though he says there can be no such thing as ‘acceptable risk’ with an issue such as allegation of sexual abuse and he does not question the reference to W and W from which he cites a passage.
Two matters arise which should be taken up: the first relates to the observation about ‘acceptable risk’ of sexual abuse, which may be misconstruing the approach formulated in M and M, and the second relates to the reference to Briginshaw, which may be confusing the standard of proof to be applied to the issue.
The relevant background to the unanimous decision [Mason CJ, Brennan, Dawson, Toohey and Gaudron JJ] in M v M can be stated briefly. In custody proceedings the mother alleged the father had sexually abused their young daughter. The decision of the trial judge to give guardianship and custody to the mother led to the father’s unsuccessful appeal and his further appeal to the High Court. On the central allegation of sexual abuse, the trial judge was not satisfied the father had abused the child but he was not satisfied he had not done so; he considered there was a possibility the child had been sexually abused by the father and that he should eliminate the risk of such abuse in the child’s interests by denying the father access, having rejected supervised access as an option.
The majority in the Full Court found no error of principle and ample evidence to support the findings made but Nicholson CJ who dissented would have remitted the matter for further consideration to apply the correct test of whether there was a ‘real or substantial risk of such abuse occurring as a matter of practical reality’. The High Court directed itself to this difference of opinion. Addressing the submission for the appellant, their Honours said the basic flaw in the argument was to identify the sexual abuse allegation as the paramount issue for determination since the Act required the Court to regard the welfare of the child as the paramount consideration, the consequence being that the ultimate issue to be decided is whether the making of the order sought is consistent with the welfare of the child. This is not altered by an allegation the child has been sexually abused by the other parent, although ‘the court’s findings on the disputed allegation of sexual abuse will naturally have an important, perhaps a decisive, impact on the resolution of that issue.’ The Court is not obliged to definitively resolve a disputed allegation of sexual abuse as a Court exercising criminal jurisdiction but to make the order which will best promote and protect the interests of the child and the resolution of that allegation is subservient and ancillary to that determination. Their Honours said the Court should not make a positive finding that the allegation is true unless so satisfied ‘according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336’ followed by quotation of the passage at 362 referred to earlier. But it does not follow that if an allegation of sexual abuse has not been made out according to Briginshaw that conclusion determines the wider issue of what is in the best interests of the child. There will be cases where there can be a positive finding that the allegation is well founded, others where the allegation can be unhesitatingly rejected as groundless, and still others where the Court cannot confidently make a finding that sexual abuse has taken place. From there they developed the concept of unacceptable risk:
‘24. In resolving the wider issue the court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assessing the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child's welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access. In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access. Even in such a case, however, there may be a risk of disturbance to a child who is compulsorily brought into contact with a parent who has sexually abused her or whom the child believes to have sexually abused her. But that is not the issue in this case.
25. Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. The degree of risk has been described as a "risk of serious harm" (A v. A (1976) VR 298, at p 300), "an element of risk" or "an appreciable risk" (Marriage of M (1987) 11 Fam LR 765, at p 770 and p 771 respectively), "a real possibility" (B. v. B. (Access) (1986) FLC 91-758, at p 75,545), a "real risk" (Leveque v. Leveque (1983) 54 B CLR 164, at p 167), and an "unacceptable risk" (In re G. (a minor) (1987) 1 WLR 1461, at p 1469). This imposing array indicates that the courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child's paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.’
Some of what was said by Baroness Hale of Richmond in her leading speech in the recent House of Lords decision of Re B (Children) [2008] UKHL 35, though directed to legislation under consideration there, stands in contrast to aspects of the judgment M and M but the latter remains the authority here.
As for the standard of proof according to Briginshaw, M and M was decided in 1988 and that reference became outstripped by the passing of the Evidence Act 1989 (Cth).The provisions of s 140 of that Act now govern the standard of proof of an issue in civil proceedings, as these are:
‘(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.’
That the issue of sexual abuse allegations falls within s 140(2)(b) and (c) could not be doubted. Certainly it was held to be so in the context of care proceedings under State child protection legislation by the New South Wales Court of Appeal recently in Director General of Department of Community Services; re Sophie [2008] NSWCA 250 [Sackville AJA; Giles JA and Handley AJA agreeing] where there was discussion of both the burden and standard of proof of such an allegation. In the course of his leading judgment, Sackville AJA said:
‘The decision in Briginshaw v Briginshaw pre-dated the enactment of the Evidence Act. More recent authorities have pointed out that s 140(2)(c) does not impose any hard and fast rules governing the proof of serious allegations from circumstantial evidence. The requirement stated in Briginshaw v Briginshaw, that there should be clear and cogent proof of serious allegations, does not change the standard of proof, but merely reflects the perception that members of the community do not ordinarily engage in serious misconduct: Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 at 171, per Mason CJ, Brennan, Deane and Gaudron JJ; Palmer v Dolman [2005] NSWCA 361 at [41]-[47] per Ipp JA (with whom Tobias and Basten JJA agreed). Despite the emphasis in the more recent cases, the Director-General did not contend that the primary judge’s citation of Briginshaw v Briginshaw was inappropriate or an indication of error.’
There is discussion in other contexts of Briginshaw in its historical context in the cases his Honour cited: Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd and Palmer v Dolman.
In conclusion, in case the passage quoted from Briginshaw gives some other impression, there is one standard of proof - the balance of probabilities - not some third standard lying somewhere between that and beyond reasonable doubt, and in deciding whether the issue has been proved to that standard it will be appropriate for the Court to take account of the ‘non-exhaustive list’ of matters in s 140(2), including the gravity of the allegation. [See Re B (Children) (supra) for the unequivocal rejection of any supposed ‘cogent evidence test’ in the UK].
Overview
The parents are Ms Stapleton (45) and Mr Hayes (55) who married in February 1998. Their first child, a son, was stillborn in June of that year. Both qualified school teachers, they lived for a time in Sydney before moving the following year to the H area where they bought a home. They both taught at a school in the area. They separated in unhappy and disputed circumstances in November 2001 when the father withdrew from the family home. The children, then aged 16 months and less than 2 months, remained in their mother’s care. Both parents remained living in the H area until 19 February 2007 when the mother left with the children without notice to the father or authorities then investigating allegations of sexual abuse of the children.
In 2003 the father formed a relationship with his current partner, Ms S, who is the mother of three children: B (17 – dob …/3/92) O (14 – dob …/11/94) and T (12 – dob …/1/97). All three children, but B and T in particular, feature prominently in the sexual abuse allegations which were to have significant implications for all concerned.
After the parents separated there were ongoing issues about the father’s contact with the children and in October 2003 he instituted proceedings for parenting orders. There were proceedings the following year in the Local Court – an AVO issued against him and he was convicted of assaulting the mother, but this was overturned on appeal. The parenting proceedings led to the making of interim orders, the filing of affidavit evidence, and the preparation of two Family Reports. In the course of those proceedings an allegation arose of sexual abuse of the children while in their father’s care and that saw the engagement of DOCS in 2005 before they closed their file towards the end of that year. The proceedings concluded with consent orders made on 28 February 2006 providing for the children to continue living with their mother and live with their father at certain specified times. The unchallenged Family Reports are a window not only into the ongoing parental conflict to which the children were exposed during those years but also into the attitudes then prevailing and some of the issues being agitated in the proceedings.
The father and Ms S began living together shortly after the consent orders were made. Differences between the parents about the children continued and allegations of sexual abuse arose again although they took a somewhat different direction. DOCS re-engaged and JIRT conducted an investigation from January 2007 which saw the children interviewed by police, as was the mother, and the children referred for medical examination. It also saw all three of Ms S’s children interviewed by police, in unsatisfactory circumstances according to the father, and while B was taken into police custody and released without charge an interim AVO was taken out against him for the protection of the children. A search warrant was executed at the father’s home. In mid-February, with the JIRT investigation still underway, the mother left the H area with the children without notice to the father or authorities and her whereabouts were unknown for a time. It transpired that for a period of two months she was in refuges in regional New South Wales and Sydney and other accommodation in Sydney before she went to her father’s at L in country New South Wales. The children have attended the L School since late April. Along the way her mental state was causing concern to various people she encountered. In the meantime, towards the end of March 2007, JIRT suspended their investigation and the matter was taken no further.
The upshot of these developments was that the children had no contact with their father from 10 January 2007 when they were returned to their mother after holidays with him until interim orders were made in the proceedings on 18 September 2007 and then provision was made for limited supervised time at a Contact Centre in G. The father travelled there from the H area each month for that purpose. At the same time those orders were made Dr R was appointed the Court expert. His report, which became available April 2008, raised concerns about the mother’s mental health and stability and so arrangements were put in place for the report to be released to her in supportive circumstances and the Director-General was invited to intervene in the proceedings. Investigating authorities renewed their engagement, the children were re-interviewed, a home visit took place and other enquiries made.
The father has been highly critical of the response and responsiveness of DOCS and the Police throughout all this and he has taken up his views with them directly as well as with the responsible State Ministers and the NSW Ombudsman. I made it clear to him - and I apprehend he accepts - that it is not the function of this Court to determine the validity or otherwise of his grievances. That would require a focus and breadth of enquiry this Court is neither authorised nor equipped to conduct and it would simply be unfair to make findings or issue judgmental pronouncements about it without all relevant information or hearing from those who are the subject of complaint.
The mother has remained living at L and the children have continued to attend the L School. She has been working part time as a teacher at the local school. She has not re-partnered. The father and Ms S remain living in the H area and he continues to work as a school teacher in the area. He has travelled to G to see the children during the times available in the orders. In the middle of 2008 both B and T went to live with their father and they visit their mother regularly, thus reversing their earlier living arrangements.
Orders sought
The orders sought by the mother initially were for limited contact supervised at a Contact Centre. In his response filed 18 September 2007 the father sought final orders for the children to live with him. However, accompanying the written submissions both parents lodged proposals for final orders. The detail is set out in a Schedule to these Reasons but this is a summary:
(i)The orders the mother proposes are for the children to live with her, she have sole parental responsibility, and the father have supervised contact at the G Contact Centre on Saturdays and Sundays every second weekend during school term or at times agreed until E is aged 10 [ie September 2011] when their time with him would be supervised by an adult member of his extended family [named] upon the family member providing a written undertaking to be present at all times the children are with their father who is to ensure they do not come into contact with Ms S’s children. Her other proposals relate to the mechanics, including the changeover of the children’s care at the Adelaide airport, and there is also a proposal that the children’s surnames be recorded with the relevant Registry as Stapleton-Hayes and not Hayes-Stapleton.
(ii)The father seeks to have the children live with him, that he have sole parental responsibility, and the mother’s contact with the children initially be supervised at the H Contact Centre, conditional on her satisfying a Family Consultant she has commenced treatment with a psychiatrist, and progress from there to half of the school holidays and on special occasions. He also proposes a raft of other orders, many of which are picked up from the orders proposed by the ICL, including the making of an order under s 65L of the Act to assist with implementation of the orders.
The ICL put no proposal at the outset of the hearing which was unsurprising since none of the evidence had been tested at that point, but a proposal did accompany final submissions and that is set out in the later Schedule. The ICL supports the children living with their father and having supervised contact with their mother for a period of three months before unsupervised time on certain weekends during school term and for periods during school holidays. There is also a proposal for an order under s 65L of the Act to assist in implementation of the orders including issues related to changeover of the children’s care to their father, explaining the orders to the children and making appropriate referrals for the children to counselling that may be required. Other proposals are directed to parental conduct of one kind or another.
The Director-General did propose an outcome at the beginning of the hearing; namely, that the children live with their mother and spend certain time with their father. This was not changed in substance by the proposal put in closing but conditions are now attached to the primary proposal; namely, the mother is to attend upon the psychiatrist, Dr F, or other psychiatrist for further assessment and treatment and the children living with her would be conditional on her continuing to attend upon him or another psychiatrist and upon her complying with any recommendations and treatment. There are some other changes to the detail of the initial proposal. Similarly, it is to be found in the later Schedule.
Evidence
Apart from the substantial body of documents tendered at the hearing, it may serve some purpose to record here the other evidence relied on.
(i)The mother’s affidavits were sworn 29 May 2007 and 26 September 2008 and evidence came from the following witnesses who were also cross-examined:
·The mother’s sister, affidavits sworn 19 April 2007, 25 June 2008 and 1 September 2008 [paras 1 to 14 not relied on];
·The mother’s father, affidavit sworn 29 May 2007 and 21 August 2008;
·Ms D, psychologist who produced a report about her consultations with N and E, affidavit sworn 29 September 2005 [see also exhibit 13];
·Ms I, who made a statement to police in January 2007, affidavit sworn 26 April 2007;
·Ms K, friend, affidavit sworn 29 May 2007 and 22 August 2008 [paras 8 to16]; and
·Dr F, psychiatrist whom the mother consulted in May 2007 and June 2008, affidavit sworn 24 June 2008.
Witnesses in her case not required for cross-examination are:
·Ms GY, friend, affidavit sworn 23 March 2005;
·Ms DM, friend, affidavit sworn 28 March 2005;
·Ms RP, friend, affidavit sworn 6 April 2005;
·Mr CW, friend, affidavit, sworn 29 April 2005;
·Ms JS, friend, affidavit sworn 30 May 2007;
·Ms LS, who has known the mother since her move to L, affidavit sworn 22 June 2008;
·Ms MC, who has known the mother since her move to L, affidavit sworn 23 June 2008;
·Ms JO, who has known the mother since January 2007, affidavit sworn 23 June 2008;
·Dr A, psychiatrist whom the mother consulted in May 2007 and June 2008, affidavit sworn 20 August 2008.
·Ms B, primary school teacher at L School, affidavit sworn 23 June 2008;
·Ms DA, who has known the mother and children since her move to L, affidavit sworn 23 June 2008; and
·The mother’s brother, affidavit sworn 24 June 2008.
(ii)The father’s affidavits were sworn on 30 April 2007 and 21 July 2008 and those of his witnesses required for cross-examination are:
·Ms S, his partner, affidavits sworn 14 September 2007 and 21 July 2008;
·A Hayes, his brother, affidavit sworn 13 September 2007;
·Ms Z, mother of Ms S, affidavit sworn 17 September 2007;
·Mr MZ, brother of Ms S, affidavit sworn 13 September 2007; and
Witnesses not required for cross-examination:
·Mr S Hayes, his brother, affidavit sworn 13 September 2007;
·Ms C Hayes, sister in law, married to S Hayes, affidavit sworn 13 September 2007; and
·Mr PZ, brother of Ms S, affidavit sworn 17 September 2007.
(iii) There was also evidence from other sources:
·Ms P, Family Consultant, who saw the family in the earlier proceedings and produced Family Reports in March 2005 and February 2006 - she was not required for cross-examination;
·Dr G, medical practitioner, affidavit sworn – she gave further evidence at the hearing and a copy of the transcript of her evidence was given to Dr R and to Dr MN;
·Dr MN, consultant paediatrician, prepared a report which was tendered by the ICL [exhibit 17] commenting on the evidence of Dr G – he was not required for cross-examination;
·Dr R, child and family psychiatrist, the Court appointed expert who issued a report dated 7 April 2008 - he was later provided with further material and he gave evidence at the hearing;
·Ms BR, DOCS officer, affidavit sworn 22 July 2008 [who was a witness for the Director-General] – she gave further evidence at the hearing; and
·Ms LY, teacher’s aide, gave a statement which was tendered [exhibit 16] and she gave evidence at the hearing.
All of this has been read and considered but not all of it needs to be specifically mentioned in the discussion to follow.
Issues
Counsel for the ICL identifies three broad questions underpinning the best interests decision:
a.Are the children exposed to an unacceptable risk of sexual abuse by B and T while with their father?
b.Does the mother exhibit behaviour and/or suffer from a psychiatric illness to such a degree as to prevent her from adequately fulfilling the role of residential parent?
c.Which parent is most likely to encourage the children to have a meaningful relationship with both parents?
Counsel for the Director-General agrees while the submissions for the mother identify the focal issue as being unacceptable risk. From the father’s point of view the evidence gives rise to two questions: the first and central question is the protection of the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence [primary consideration in s 60CC(2)(b)]; the second is the encouragement each parent can give to enable the children to have a meaningful relationship with the other parent [primary consideration in s 60CC(2)(a)]. I see the differences being more of expression and emphasis than substantial. Findings will be made so far as they are open and necessary to establish the facts on which the children’s best interests can be evaluated.
History
The parents had been separated for 7 years at the time of the hearing and I see no real purpose served by canvassing now differences about their separation and events in the immediate aftermath. It will suffice to consider the attitudes and issues reflected in two unchallenged Family Reports prepared in the first round of proceedings that began in October 2003 and concluded by consent orders in February 2006. The first of those reports was released in March 2005, at a time when interim orders provided for the father to have regular contact with the children but not overnight. The reporter’s assessments rather than the underlying detail can be summarised:
· There were still feelings of mistrust, anger and hurt, the still birth of their first child had a significant impact and contributed to the breakdown in their relationship, and their individual personality characteristics had led to problems reflected in their inability to effectively manage contact arrangements.
· The children were being adversely affected by the parental conflict. N had already had some counselling and the reporter thought she might benefit from some further counselling ‘to assist her manage the conflicted messages she receives and to prevent her from blaming herself’. Earlier the reporter had noted the mother had denied inappropriately discussing adult issues in front of the children, but she had told the reporter if the children asked about her relationship with their father she believed in telling them the truth. It was thought the father’s anxiety might be contributing to his coping strategy which appeared to be overly rigid in nature, but he was assessed as having a good relationship with the children and to have much to offer them as a father. Indeed it was said that the mother had no objections to him having overnight contact.
· But for the acrimony between the parents, the reporter considered the arrangements in place would be ideal having regard to the children’s ages, although the number of changeovers should be reduced since that was stressful for the children. She recommended the children live with their mother and their contact with their father progress to include overnight visits in a staggered fashion consistent with their ages and needs.
While awaiting the final hearing there arose what I apprehend to be the first mention - to the father at least - of inappropriate behaviour towards the children. It came to him in a letter from the mother’s former solicitor, Mr Miller, written on 24 August 2005 and foreshadowed a suspension of contact. The letter refers to ‘difficulties for some time as to the behaviour of the children around periods when you have contact with them’ some of which were said to be set out in the Family Report, and it relayed the mother’s instruction that N had recently said to her ‘[T] plays with our bottoms’ and the children had been chanting ‘bum bum bum etc’ and there ‘have been other instances of inappropriate behaviour by the children’ though not specified. To ensure the children’s protection they would not be available for contact pursuant to the interim orders until the father gave a written undertaking that T would not be in the children’s presence and the father would be present at all times. In response, the father made the first of many notifications to DOCS when advised of allegations related to the treatment and safety of the children while in his care. He provided a copy of the letter and urged full investigation.
It appears the children had first come to the attention of DOCS much earlier by a notification on 10 October 2003, just before the father instituted the Court proceedings then pending, but the nature of that was not specified and no action was taken. The second notification, according to Ms BR, was received on 29 July 2005, the allegation being that the children were at risk of sexual harm by their father and that he had exposed them to pornographic material. JIRT declined a referral from DOCS who embarked upon an investigation. The mother’s participation in that was delayed by her refusal to speak to DOCS until they discussed the matter with her solicitor, but she was interviewed on 14 September 2005. DOCS records of the information provided included amongst other things that she had been told by Telstra workers the father had bugged her phone; he had intimidated her and people in the street gave her strange looks; the children are defiant and angry and display inappropriate sexual behaviour; one of the pictures E had drawn at pre-school was of a penis ejaculating and she would provide drawings the children had done; she had not taken the children to the doctor or made a report to DOCS [she is a mandatory reporter] because she did not want the Family Court proceedings to be dragged out [she was later to say in the Family Report interview that she did not want it interfering with the financial settlement]; she referred to the father’s ‘step son’ as being the perpetrator of sexual harm towards E and N; and she wanted an AVO taken out against the father who had physically abused a student at school. She later provided DOCS with several of the children’s drawings although the file record notes the drawings did not appear to be of a sexual nature.
To go back a step, the mother had made arrangements a few weeks before her interview by DOCS for the children to see a psychologist, Ms D. As she was to later explain, she had noticed the children exhibiting ‘strange behaviour’ which appeared to be out of character and they were having nightmares and she arranged for the consultation with Ms D on the advice of a psychologist friend in Sydney. The first consultation occurred on 22 August 2005 and in fact it was the only consultation before Ms D produced a report on 6 September addressed to the mother. The purpose of producing a report is not apparent if the object was to address the children’s behaviour. In any event, the report has several parts:
(i)It records information the mother provided including change in the children’s behaviour: defiance, sexually explicit play, naming genital parts with crude names, simulating sexual intercourse in their play together and when they cuddled her, and playing dangerously. The mother also told her about having observed pornographic magazines near N while asleep on the father’s bed in 2002 and similar magazines spilling out from the bedside cupboard. The mother also said the children had mentioned a boy called T and E had said: ‘[T] plays with my bottom. [T] plays with my titties and bum’ and after the last visit to their father three weeks earlier the girls had chanted while giggling: ‘[T] doesn’t touch our boobies, daddy doesn’t give us massages, no one told us that. [T] is not disgusting’.
(ii)Having observed the children, Ms D concluded they lack social boundaries – they did not engage in play, they quarrelled, they ignored her conversation, and they tried to avoid cleaning up – and she thought it unusual that N had referred to the gender of a china cat by identifying it as a ‘boy cat’. Ms D thought N may have thought the cat’s leg was a penis. She concludes:
‘Being made from porcelain the cat’s leg was rigid. It may be that she has been exposed to sexual situations or sexually explicit material, because it would be considered unusual for a child of this age to make reference to the gender of the animal. In my experience of children this age they make comments other than that of gender, such as the colour, material and size of the animal.’
This report was available to the mother by the time she was interviewed by DOCS on 14 September. Of that interview their records indicate the mother had sought counselling for the children who, so it was alleged, were being sexually abused by their father, the father had exposed them to pornography, the children were displaying inappropriate sexual behaviour, the children had red sore vaginas; and the children display regressive behaviour such as sucking thumbs. The DOCS file noted a previous report from the Sex Crimes Squad NSW Police of an anonymous letter alleging the father was sexually abusing his daughters. On that same day there were interviews by DOCS officers of both children, neither of whom made any disclosure of wrongdoing or displayed any concerning behaviour, but it was concluded that some of the children’s statements suggested adult influence – both children were speaking in ‘adult terms and phrases out of context which indicated that the chn have either overheard adults talking or had been spoken to prior to being interviewed’ about things they could not have remembered. The father was interviewed on 20 October. Of that it was said he was consistent in the information he provided and he acknowledged his responsibilities as a mandatory reporter. The file notes that Ms D had not reported the matter to DOCS but it is apparent her 6 September report was reviewed by DOCS. In the end it was assessed that the children were at risk of psychological harm by reason of the ongoing parental conflict but the allegations were unsubstantiated. It was recommended the parents undertake counselling and the file closed.
Ms D’s report was also filed in the pending parenting proceedings. On 19 October 2005 orders were made for the children to have monthly visits to Ms D for assessment and preparation of a report for the final hearing. At the same time there was an order for another Family Report, with particular emphasis to be given to issues of child abuse, pornography and the social adjustment of the children. A further order obliged the father to be present at all times during contact with the children and to supervise T, which was to become the subject of later controversy.
Ø [It will be apparent to this point that not all of the information given to Ms D three days before the solicitor’s letter was conveyed to the father in that letter and nor was there any reference to the children’s earlier consultation with Ms D. It will also be apparent that the information the mother gave DOCS was markedly different to the information she had given Ms D and had been conveyed in the letter to the father who had had no contact with the children in the meantime. For example, neither to Ms D nor to the father was there mention of an allegation the father was sexually abusing the children or of the children having ‘red sore vaginas’. It will be further apparent that despite this observation of the children’s genitalia the mother had not taken them for any medical examination to ascertain the cause and whether treatment was required. Moreover, since the mother saw it as relevant to allege at this time that the father had exposed one of the children to pornography in 2002 it is curious she did not mention that in the interviews for the Family Report prepared earlier that year in March. The father correctly observes that there was not filed in the Court in the mother’s case a Notice of Abuse or Risk of Abuse and while that is a shortcoming that was to later recur more than once, it is more appropriate to sheet that home to the former solicitor.]
In a statement made much later to the police the mother identified April 2005 as the time children first mentioned something wrong was happening. Her police statement also throws up anomalies and omissions when compared with the information she gave to Ms D, with the letter sent to the father, and with the information she gave to DOCS. What follows is in her police statement and referable to the period before her interview by DOCS, together with observations about it:
(i)In April 2005 while the children were getting into the bath she noticed N patting E on the bottom and trying to touch her on the breast. N said ‘[T] touches our bottoms’. She says she did not think much of it at the time.
Ø [Nonetheless, that this had been said by one of the children four months before was not mentioned in the solicitor’s letter which conveys the clear impression that 11 August or thereabouts was the first complaint the children had made about T touching their bottoms.]
(ii)The girls told her about B and T playing in the backyard and that N said B ‘touches us when we play…on the bottom’.
Ø [There was nothing in the letter about B and nor was the undertaking sought from the father before contact could resume directed to B’s presence. There was no specific mention of B to DOCS.]
(iii)In May or June 2005 the children were at Ms GY’s when the mother noticed ‘strange behaviour’ which appeared to be out of character. While at Ms GY’s house she observed the children bend over on their hands and feet with their underpants down and their bottoms exposed pressing against each other saying ‘bum, bum, bum’. She says Ms GY told her she had seen the children ‘putting their fingers in each others bum’ and she also told the mother this was a sign of child abuse.
(iv)Around this time she saw E and N playing like they were pretending to have sex on the bedroom floor of Ms GY’s flat when she heard N saying ‘do you have to smoke while we are fucking’; she observed E lying face up and N lying on top of her and facing her; E was pretending to smoke a cigarette and N was thrusting her pelvis against E’s pelvis area. She states that she told the children their behaviour was unacceptable.
Ø [It has to be said that it is nothing short of remarkable that this behaviour should not have rated a mention in the letter to the father, or at least something to convey concern about their exposure to sexual activity, and yet the step taken was to withdraw contact unless the father undertook to be present and supervise the presence of T. The mother relayed no description of such sexually explicit behaviour and language in her interview with DOCS. Nor did the mother in her police statement repeat the allegation the father was sexually abusing the children.]
(v)She had picked up the children after their contact with their father and they talked over the top of each other in the car: ‘bum bum bum bottom head butthead [T] doesn’t touch our bottoms, [B] doesn’t touch our bottoms. They are not allowed to touch our bottoms, no no that’s yucky. We don’t play dirty games. That’s digusting. digusting, digusting’. She identified this as the trigger event for her application to have the father be in the children’s presence at all times while in his care. She had her solicitor write to the father outlining the incident and requesting the undertaking noted earlier but he refused to give it.
Ø [There is no mention of B in the solicitor’s letter and the application was not filed until 16 September 2005, two days after the children had been interviewed by DOCS which did not come about as a result of any notification from her and nor did the interview give rise to concerns by DOCS apart from the impact on the children of parental conflict.]
Returning to Ms D’s involvement, she saw the children on 9 November and 9 December. Putting to one side the background she recorded in her later report, of the consultation on 9 November she noted the children to be relaxed and happy to play with their mother, they both engaged with Ms D easily, E’s play stories were age and socially appropriate, E was slightly more compliant about putting toys away, N continued to play with the doll house and made groups of people and a farm using a felt board although it did not have a family theme, and N attempted to avoid cleaning up for a while but she was generally compliant. Of the consultation on 9 December, when the children were seen separately, her report is better able to speak for itself:
‘…[E] drew two human figures on the whiteboard with clearly outlined genitalia and oversized hands. She labelled the drawings male and female and the male had a clear large appendage between its legs and the female also had a smaller appendage similar in shape to the male figure.
At the end of the session [E] was again reluctant to clean up but did so with less encouragement than at the previous session.’
She goes on to express the opinion there is a ‘strong likelihood that they have been exposed to or engaged in sexually explicit behaviour’. She says the mother’s reports of conversations with the children of sexual remarks and behaviour by the girls are not normal, appropriate expressions of curiosity by two young children since it is sexually graphic in nature, referring to licking genitals, using sexualised names and imitating sexualised behaviour which is not uncommon for children who have been sexually abused through exposure to pornography or being engaged in sexual behaviour with a usually older, sexually experienced person. She concludes her report:
‘The reported conversations and behaviours by [the mother] alone would not necessarily indicate sexual abuse, however the drawings by [E] and the assumption by [N] that the cat had a penis exposed would seem to support their mother’s concerns that sexual abuse has occurred.’
In her statement to the police later the mother alleged other developments during 2005 in the period after the DOCS enquiry concluded and before the Court proceedings concluded in February 2006:
(i)At Christmas 2005 when her father was visiting she was at the dinner table with her father and both of the children when E picked up a sausage and said ‘suck my sausage, suck my sausage, suck my sausage, this is really boring. Suck my sausage, I don’t really like this. I have to do it. Suck my sausage, such my sausage, suck my sausage’ while pushing the sausage in and out of her mouth. Asked by her mother what she was doing, E identified it as a ‘boring game’ of B’s.
Ø [However, this runs counter to the evidence of her father. There was no mention of any such incident in his affidavit and when asked about it directly he said it did not happen, he was not there – ‘was I there?’ – and he did not recall the incident. He agreed he would remember it if he had been there. Though a plainly relevant development to their investigation just closed, the mother did not report it to DOCS, nor did she contact the police, and nor is it apparent that she had her solicitor take it up with the father. Of course there was a further Family Report yet to be prepared but that process was not undertaken until later and it could not provide any immediate protection mechanism.]
(ii)She also related an incident during that same visit when her sister and her children were visiting: E put the leg of her doll on her lips and said ‘icky stick, icky sticky it’s icky sticky its penis icky on my lips’, N joined in and one of the girls identified B as talking about ‘penis icky’.
Ø [If her statement is to be construed as meaning either her sister or her father were present, their evidence does not support it. When it was put to her sister she had no recollection of it - ‘I had other things on my mind’ – and she agreed she would have remembered it if she had heard it. Despite the children talking about ‘penis icky on my lips’ the mother made no report to DOCS or to the police and nor is it apparent she had her solicitor take it up with the father.]
(iii)The mother also stated that there had been ‘numerous other incidents the girls have displayed sexualised behaviour in front of other people’ but she gave no specifics.
In early February 2006 the second Family Report became available and it gives an indication of prevailing issues and attitudes. At the time the father was proposing he have the children in his care alternate weekends until E begins school in 2007 from which time their care would be shared week about. The mother was proposing the children be in his care alternate weekends and half the school holidays which she saw as taking account of her future plans to relocate up to an hour away.
Ø [Whatever else might be said of it in the circumstances to this point, obviously the mother’s proposal can be seen as inconsistent with any allegation that the father had sexually abused the children.]
Given the consent arrangements that followed this Report, it will be as well to review some of what was said:
(i)The mother said she had stopped contact after N told her T had played with their bottoms. She did not report it to the doctor or DOCS because she was worried it would interfere with the financial settlement in the Court proceedings. A friend in Sydney had recommended she take the children to a counsellor as they may be being sexually abused. In consulting Ms D she had begun to question past events and thought she had not acted protectively. The children’s behaviour had changed: they had been difficult to manage on return from their father’s and they were increasingly defiant and sexualized in their talk and play. She had sought assistance from Ms D with that. While things had improved, she identified the children’s lying as an ongoing issue.
(ii)From drawings done by the children at the pre-school she believed they may be being sexually abused, staff at the pre-school indicated the drawings were sexual and told her ‘don’t tell us, we don’t want to know’ which she took to mean they had concerns. The reporter records that the mother -
‘…spoke in an odd manner about [E’s] drawing of a flower which she suggested represented a penis. In hushed tones she told the report writer that she did not believe that it was [the father’s] penis as it wasn’t circumcised.’
Ø [The reporter said she spoke to the teachers at the pre-school and they had no concerns about the children’s behaviour and development and in their view the children’s drawings were consistent with their age and level of development].
(ii)The mother interpreted behaviour such as E thumb sucking and other things as indicative of abuse. She related the children speaking on one occasion about penises and ‘sticky stuff’ on lips which was ‘icky’. She alleged the father had left the children to be supervised by B. In the past the children had told her they had been locked in a room with T and she surmised this was because the father and Ms S were having sex.
(iii)She described the children as frequently upset and resistant at changeovers. She believed the father was telling the children to lie and keep secrets from her and that he is openly critical of her in remarks to the children. She said she questioned N about ‘telling lies’ after the last Family Report interviews and that resulted in N becoming upset.
Ø [The reporter commented that the mother attributed N’s upset not to her questioning but to the father putting pressure on her.]
(iv)The mother believed she is being harassed by the father and his friends as he is well known in the community due to his sporting activities:
‘She believes that she is not served in shops, her lawn isn’t mown and her bins are not emptied, as the people involved believe what [the father] says about her.’
(v)The father denied any sexual activity between himself and his partner when the children were around, he denied he has ever had pornography, including on the bed near N when she aged 1½, he maintained the mother did not encourage the children to go into his care, he denied making critical remarks about her, he had not noticed any of the behaviour problems the mother experienced, and he denied any inappropriate method of discipline. In his view the mother has ‘lost the plot’ by accusing him of bugging her telephone and he questioned whether she had been told this by Telstra workers since he received no complaints.
(vi)The report described N being in an hysterical state and her mother was unable to calm her though she quickly settled on being handed over to Ms GY. N impressed as an intelligent 5 year old with rapid and repetitive speech and conversation focussing on whether people had lied or told the truth. It was the reporter’s impression she had significant anxiety and was confused. Indicative of this was her statement ‘mum says all daddy’s friends are mean, I think they are mean, but I don’t know, I can’t remember if she said they are or they aren’t’, she referred to dispute between her parents about finances and her concern that her mother was not going to get enough money. She made several statements about her father lying and other criticisms of him, apparently based on adult conversations she has heard about him. She enjoyed having contact with her father ‘but only a little bit’ and quickly volunteered she also liked spending time with her mother. She was said to have made many conflicting statements about her father, Ms S and Ms S’s children: they were mean and bad but was unable to describe in what way; they were also ‘nice and fun’.
(vii)E presented as a mature 4 year old, bright and of normal development with slight speech difficulties. She described feeling scared of ‘talking things and hurting things’ and she worried about her mother dying. She said she is a bit scared of her father as he smacks and grounds them and she volunteered that Ms S is a ‘bit mean and tells lies’ but she liked going on contact with her father ‘sometimes’ and she liked it when he took her to the beach.
(viii)The reporter observed a warm relationship between both parents and the children who sought physical proximity and chatted freely. Both parents were observed to relate to the children in a child friendly manner. The father was observed to behave in a warm, caring manner towards the children but at times to put down firm boundaries: he reminded N ‘we have no baby talk’ and ‘he made sure he had the children’s attention at all times when he was talking to them and his style of communicating with them demanded that they connect and conform to certain standards of behaviour.’
(ix)In the reporter’s opinion there was no evidence to suggest the children had been sexually abused. The mother had a significant degree of anxiety and stress probably related to Court proceedings and this had contributed to her interpreting the children’s statements and behaviour as indicating sexual abuse rather than being age appropriate and in response to aspects of parenting. Ms D’s assessment of lack of social boundaries does not necessarily indicate exposure to inappropriate sexual behaviour or sexual abuse; it may be connected to and responsive to the mother’s anxiety and her view of the children as being unsafe or the result of exposure to parental conflict, the difficulties at changeover, and the mother’s difficulties managing their behaviour. Both children were being negatively affected by exposure to the parental conflict, more particularly through the information coming from their mother about the conflict and her questioning of them and her responses to them. It is unclear to what extent the mother’s behaviour is intentional or the result of her own anxiety. N in particular was exhibiting signs of emotional and psychological distress. The children’s anxiety probably stems from them not being sure if they are safe in the care of their father through their exposure to their mother’s fears, feelings of split loyalty, and feeling protective towards their mother. It is likely they are stressed from exposure to adult perspectives and the feeling they have to take sides. Being chastised for telling lies had led to confusion about what is a lie and what is the truth – they feel caught in a double bind, where they feel they are expected to say or not say things for fear of being disloyal or getting into trouble for telling lies. If it continues they would be at risk of psychological harm. The views expressed by the children appear to be the views held by the mother.
(x)The children say they love their mother and want to live with her. They view their father and Ms S with suspicion and hold them responsible for their mother’s unhappiness. The quality of the children’s attachment to their mother could not be fully assessed, but in the reporter’s opinion that is compromised by their exposure to their mother’s thoughts and feelings about their father and their feeling they need to protect her.
(xi)It was also the reporter’s opinion that the mother displays elements of paranoid thinking when she talks about feeling discriminated against in the community – not being served in shops or having her bins emptied and her belief that the father is tapping her phone and bribing the children to tell lies.
(xii)While the reporter found aspects of the mother’s parenting to be of concern, she considered the father unlikely to be in a position to provide the children with increased stability: he has a limited history of contact with the children which appears to have affected his ability to form the kind of attachment and relationship which would sustain the children through a significant change of residence, his history of not being able to effectively communicate with the mother, and elements of rigidity in his personality may make it difficult for him to accommodate the children’s feelings and responses to a significant change in their arrangements and inhibit the development of a secure attachment with them. The reporter also considered the mother’s anger towards the father, combined with his difficulties managing his relationship with her, affects her ability to facilitate contact between him and the children.
(xiii)She did not assess the week about shared care the father was proposing to be in the best interests of the children since it requires that parents effectively co-parent and she concluded they would benefit from spending longer with their father, such as alternate weekends, so they can build a relationship not defined by their mother’s view of him. She thought changeover should occur at school where possible and it would be preferable for the children to be with their father one evening in the ‘off week’ where he could pick them up from school and return them to their mother. She recommended this and that the parents complete a particular parenting program.
Orders sought by mother in closing
The children of [the mother] and [the father] shall live with the mother.
That the mother shall have sole parental responsibility.
The father is to have contact at [G Contact Centre] from 3.00pm to 5.00pm on Saturdays and 9.00am to 11.00am on Sundays during term every second weekend and at other times as agreed by both parents in writing that the Centre can offer including during school holidays excluding Term 1 school holidays and the Christmas school holidays.
Until [E] attains the age of 10 for the purpose of the father's time with the children such time is to be supervised by an adult member of the father's extended family being [the father’s brother S], [S’s wife], […], […] and or […] excluding [the father’s brother A], such supervisor to provide a -written undertaking to the Court that he or she shall be present at all times during the time that the children are with their father
For the purpose of the preceding Order the mother shall cause to be provided to each of the supervisors a copy of these Orders.
The father shall ensure that the children do not come into contact with the children [B], [O] and [T].
The father's contact is to occur with delivery and collection at Adelaide Airport for:
a.Each alternate year from 23 December to 20 January commencing 2009
b.Each other year from the 7 January until 2 days prior to the commencement of the new school year excluding the first day of term
c.Each Easter for the period commencing on the second day of the school holidays (excluding the last day of term) to a day 5 days prior to the end of the school holidays (excluding the first day of term).
The father is to pay half of the cost of flights to and from Adelaide.
Telephone and as per current Orders
That the mother and father shall forthwith do all things and sign all documents and give all consents to ensure that the Registry of Births Deaths and Marriages, shall record the surnames of the children as [Stapleton-Hayes] and not [Hayes-Stapleton].
That pursuant to Section 65DA(2) and Section 62B of the Family Law Act, 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.
I certify that the preceding one hundred and eighty four (184) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Moore
Associate:
Date:
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