STOKES & STOKES
[2014] FamCA 333
•22 May 2014
FAMILY COURT OF AUSTRALIA
| STOKES & STOKES | [2014] FamCA 333 |
| FAMILY LAW – CHILDREN – Parental Responsibility – Where an order is made for sole parental responsibility – Meaningful relationship – Risk of harm – Where allegations of sexual abuse against the father have been made – Where there is a finding of no unacceptable risk of sexual abuse in the father’s care – Where there has been high conflict between the parents – Best interests of the children – Where the father has re-partnered – Blended families – Where the father has spent unsupervised time with the children since the allegations – Where the father has been spending supervised time pursuant to interim orders – Where a gradual increase of unsupervised time with the father is appropriate – Counselling for the children. |
| Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC Evidence Act 1995 (Cth) s 140 |
| Briginshaw v Briginshaw (1938) 60 CLR 336 M v M (1988) 166 CLR 69 Marsden & Winch (No 3) [2007] FamCA 1364 |
| APPLICANT: | Mr Stokes |
| RESPONDENT: | Ms Stokes |
| INDEPENDENT CHILDREN’S LAWYER: | Clare Dart |
| FILE NUMBER: | BRC | 7086 | of | 2012 |
| DATE DELIVERED: | 22 May 2014 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Forrest J |
| HEARING DATE: | 5 and 6 August 2013 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Page of Queen’s Counsel |
| SOLICITOR FOR THE APPLICANT: | Turner Riddell Lawyers |
| SOLICITOR FOR THE RESPONDENT: | Mr Mallard Allan Mallard Solicitor |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms McArdle |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid Queensland |
Orders
That all previous Orders and Parenting Plans be discharged.
Where the Children shall Live and Parental Responsibility
That the children, C born … 2002 and E born … 2005, shall live with the mother.
That the mother have sole parental responsibility for the major long-term parenting issues in respect of the children of the parties, including decisions regarding the children’s:
(a) Education, both current and future;
(b) Religious and cultural upbringing;
(c) Health; and
(d) Names.
That except in the event of an emergency, the mother is to consult the father about decisions to be made in the exercise of her sole parental responsibility on the following basis:
(a)The mother will give the father in writing details of the decision that needs to be made, what decision she proposes to make and the reasons why she proposes the decision be made in a particular way;
(b)The father will respond to the mother, if he wishes to suggest any variation or alternative proposal within seven (7) days of receiving notice;
(c)The mother will consider any feedback given by the father by reference to the best interests of the children;
(d)The mother will inform the father, in writing, within seven (7) days of the decision she has made and her reasons for making it.
That notwithstanding the provisions of the above paragraphs hereof:
(a)The father shall be responsible for the day to day care, welfare and development of the children at all times when the children are living with or spending time with him; and
(b)The mother shall be responsible for the day to day care, welfare and development of the children at all times when the children are living with or spending time with her.
Time with the Father
That the children shall spend time and communicate with their father at all reasonable times as may be agreed between the parties and failing agreement as follows:
(a)Until such time as the children have had two (2) sessions each with their therapist (as provided for in Order 18 hereof), for up to two (2) hours each alternate weekend with such time to be supervised by B Contact Centre, provided that those two sessions must take place within 6 weeks of the date of these orders; and then
(b)From 9.00 am until 5.00 pm each alternate Saturday for six (6) such visits; and then
(c)From 12.00 pm Saturday until 12.00 pm Sunday each alternate weekend for six (6) such visits; and then
(d)Each alternate weekend from after school Friday until 5.00 pm Sunday with such time to be extended to 5.00 pm Monday in the event the Monday is a public holiday. This time shall continue during the school holidays when the father is not exercising holiday time in accordance with Order 8 hereof.
That in the event the children are not able to attend time with their father, make up time shall be arranged on the following weekend. The cycle will then resume as if it had not been broken.
School Holidays
That commencing with the Easter school holidays in 2015, the children spend up to a week with the father in each school holiday period on the basis that:
(a)The father is to give the mother at least one (1) month’s written notice of the dates upon which he wishes to spend time with the children; and
(b)The father is able to take leave from his employment and will be primarily available to care for the children.
Special Days
That notwithstanding any previous orders, the children shall spend time with their parents on special occasions as follows:
(a) Christmas Day:
(i)From 1.00 pm Christmas Eve until 1.00 pm Christmas Day in even numbered years with their mother and in odd numbered years with their father; and
(ii)From 1.00 pm Christmas Day until 1.00 pm Boxing Day in odd numbered years with their mother and in even numbered years with their father;
(b) Easter:
(i)From 1.00 pm Good Friday until 1.00 pm Easter Sunday in even numbered years with their mother and in odd numbered years with their father; and
(ii)From 1.00 pm Easter Sunday until 5.00 pm Easter Monday in odd numbered years with their mother and in even numbered years with their father.
(c)On the birthday of each child with the parent they are not living with on that day:
(i)If a school day, from after school until 7.00 pm;
(ii)If a non-school day, from 9.00 am until 12.00 pm;
(iii)With that parent to be responsible to collect and return the children from and to the other parent.
(d)On the mother’s birthday when they are not living with the mother on that day:
(i)If a school day, from after school until 7.00 pm;
(ii)If a non-school day, from 9.00 am until 12.00 pm;
(iii)With the mother to be responsible to collect and return the children from and to the father.
(e)On the father’s birthday when they are not living with the father on that day:
(i)If a school day, from after school until 7.00 pm;
(ii)If a non-school day, from 9.00 am until 12.00 pm;
(iii)With the father to be responsible to collect and return the children from and to the mother.
With their father on Father’s Day in 2014 from 9.00 am until 5.00 pm provided the children have had two (2) sessions each with their therapists (as provided for in Order 18 hereof). Otherwise time will occur at B Contact Centre at whatever time they can facilitate for up to two (2) hours.
That commencing 2015, the children shall spend Mother’s Day weekend with their mother and the Father’s Day weekend with their father and if not, otherwise a weekend that the children would be in that respective parent’s care, then in substitution for the following weekend when the children would otherwise be in their care.
Telephone and other Electronic Communication
That the children communicate with the father as agreed between the parties and failing agreement as follows:
(a)By telephone between 5.30 pm and 6.00 pm on each Wednesday with the father to initiate the call;
(b)By email at all reasonable times;
(c)By post.
That the children will communicate with the parent in whose care they are not with during school holidays by telephone between 5.30 pm and 6.00 pm on Wednesday each week.
When the children are communicating with the other parent each parent shall:
(a) Ensure that the children are available to receive the telephone call;
(b)Arrange for the children to telephone the other parent on the following night if, for any unforeseen circumstance, the children miss the telephone call from the parent;
(c)Ensure that the children have privacy during their communication with the other parent.
Changeovers
That except as otherwise agreed in writing changeovers shall occur on the following basis:
(a)Those changeovers occurring before or after school shall occur at the children’s school/s; and
(b)All other changeovers shall occur at B Contact Centre (“the Contact Centre”) with the parents to share the costs of using the Contact Centre equally.
That at the end of each period of time the children spend with them each parent shall deliver and return the children’s clothing, school supplies and belongings and the children’s clothing shall be returned in a clean condition.
Counselling
That both parents do all acts and things necessary to arrange for their attendance upon a counsellor or other health care professional (“therapist”), as nominated by the Independent Children's Lawyer for as long as therapeutically indicated, to support them in implementing the terms of these Orders and to assist them in dealing with the issues identified in Ms A’s Family Report dated 24 July 2013 and Dr D in her reports dated 16 & 18 April 2013.
That both parents do all acts and things necessary to arrange for the children’s attendance upon a counsellor or other health care professional (“children’s therapist”), as nominated by the Independent Children's Lawyer for as long as therapeutically indicated and that professional is to be required to:
(a)Explain these Orders to the children and any findings of the Court in an age appropriate manner; and then
(b)Support the children through the implementation of the terms of these Orders.
That both parents hereby authorise their therapists to speak with the other parent’s therapist and the children’s therapist so that the best outcomes can be achieved for the children through the counselling/therapy process.
That the Independent Children's Lawyer be granted leave to publish to each parent’s and the children’s therapists a copy of the Final Orders and Reasons for Judgment by the Honourable Justice Forrest.
Section 65L
In the event the Independent Children's Lawyer is unable to locate suitable therapists to assist the children and the parents in supporting the implementation of these Orders, the Independent Children's Lawyer will notify the Manager of Child Dispute Services at the Brisbane Registry of the Family Court of Australia and arrangements will be made pursuant to s 65L of the Family Law Act for:
(a)Compliance with these parenting orders to be supervised by a Family Consultant, Child Dispute Services of Family Court of Australia, Brisbane Registry;
(b)The Family Consultant shall give any party to the parenting orders such assistance as is reasonably requested by that party in relation to compliance with the parenting orders;
(c)The parties shall do all acts and things, sign all such documents and attend all such appointments as determined by the Family Consultant as reasonably necessary for such supervision and as directed by such Family Consultant from time to time.
Parenting Orders Programme
That the parents shall undertake a parenting orders programme.
That the parents, within seven (7) days of the date of these Orders, contact the parenting orders programme coordinator nearest to where each of them lives (or that person’s nominee) for intake into the programme.
That the parents shall comply with any reasonable direction of the programme coordinator and in particular:
(a)Attend as requested for the purposes of assessment as to whether they are suitable for participation in the programme;
(b)Advise the programme coordinator of their contact telephone number and advise the programme coordinator of any change in that number;
(c)Attend and participate in the programme as requested including attending referral to treating health professionals as recommended by the programme coordinator;
(d)Attend at any course or programme as nominated by the programme coordinator.
That for the purposes of the programme:
(a)The parties shall provide the programme coordinator with a copy of these orders;
(b)The parties are at liberty to provide the programme coordinator with a copy of any reports that have been prepared in the course of any proceedings that resulted in the parenting orders.
Communication
Neither parent shall discuss these proceedings with the children.
That during the time the children are with either parent, that parent shall:
(a)Respect the privacy of the other parent and not question the children about the personal life of the other parent; and
(b)Speak of the other parent respectfully; and
(c)Not denigrate or insult the other parent, their partner, family or friends, in the presence or hearing of the children; and
(d)Use their best endeavours to ensure that others do not denigrate or insult the other parent, their partner, family or friends in the hearing or presence of the children.
That the parents shall keep one another informed of matters concerning the children via email and the parents shall keep such communications courteous and as short as possible.
That the mother and father shall keep the other informed of their home address, landline and mobile telephone numbers and will advise the other of any change to the same within 48 hours of that change or of any alternative emergency contact number.
Health and Education
That the parties shall keep the other informed of the children’s doctors, health care and other treatment providers and authorise those practitioners to provide the other parent with information that they are lawfully able to provide about the children and this order shall serve as such authority.
That each party shall inform the other parent as soon as reasonably practicable of any medical condition, significant health issue or significant illness suffered by the children and authorise any treating medical practitioner to release the children’s medical information to the other parent.
That the parties shall keep the other informed of any daycare, school, educational facility or extracurricular activity provider that either child attends and authorise those providers to provide the other parent with information that they are lawfully able to provide about the children including the option to purchase school photographs, and this order shall serve as such authority.
That if there is a cost associated with the provision of any information or documents under these orders from the children’s doctors, health care and other treatment providers or daycare, school, educational facility or extracurricular activity provider the expense shall be borne by the parent requesting the information.
That subject to the conditions imposed by the children’s schools, these orders authorise both parents to attend school functions to which parents are ordinarily invited including but not limited to carnivals, sports days, fetes, concerts, plays and parent/teacher interviews.
That each parent shall in all reasonable circumstances ensure that the children attend all educational, sporting and hobby events when the children are with that parent.
Other
That the Independent Children’s Lawyer be granted leave to publish to the Director-General, Department of Communities, Child Safety and Disability Services:
(a)The Family Report of the Family Consultant, Ms A dated 20 November 2012;
(b)Dr D’s reports regarding the parents dated 16 and 18 April 2013;
(c)The updated Family Report of the Family Consultant, Ms A dated 24 July 2013; and
(d)Final Orders and Reasons for Judgment of the Honourable Justice Forrest.
That the Independent Children’s Lawyer be discharged once she has published the necessary documents to the parents’ and the children’s therapists and the Department of Communities, Child Safety and Disability Services as provided for in these Orders.
That all outstanding applications be dismissed.
NOTATION
(A)The parties intend by these orders that the parents’ counsellors and the children’s counsellor/s will communicate with each other so that the children can be supported in the transition from supervised to unsupervised time, the parents can be supported in dealing with any questions that might arise from the children and with a view to reducing the potential for the children to be exposed to conflict in the future.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Stokes & Stokes 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 BRISBANE |
FILE NUMBER: BRC 7086 of 2012
| Mr Stokes |
Applicant
And
| Ms Stokes |
Respondent
REASONS FOR JUDGMENT
Marriage breakdown is very often productive of emotional turmoil and conflict. If there are young children of the marriage who have relationships with each of their parents that are important to maintain, the presence of high conflict in the relationship between their parents can have devastating effects on their emotional development.
In matters in this Court, it is not uncommon to see otherwise good parents, caught up in conflict with their former partner, unable to recognise, let alone accept, the importance to their children of being able to maintain meaningful relationships with the other parent. Often, parents who have successfully co-parented and respected and valued each other’s importance in the lives of their children prior to separation, become convinced post-separation that they are the only parent who is capable of appropriately caring for their children and determining what is in their best interests.
Sometimes, the conflict between the parents drags on and on, with the children having little respite from it. Sometimes, the parent with whom the children live, for various reasons, becomes more and more angry with the other parent and more and more determined to minimise, or even remove entirely the other parent’s influence in the lives of the children. Sometimes, this determination can cloud that parent’s better judgment.
Unfortunately, this is sometimes the context in which allegations that one parent has sexually abused a young child or young children arise.
I am satisfied that this is one of those cases.
The parents of C, who is 11 years of age, and his little sister, E, who is now 9 years of age, have been in high conflict since their marriage ended with separation in December 2007 after 9½ years. They each seek parenting orders from this Court. Critically, the determination of those orders is required to be made around the central factual issue of alleged sexual abuse perpetrated by the father against both children.
By what principles is this case to be determined?
Unquestionably, the sexual abuse of children is abhorrent. It so often has devastating lifelong effects on its victims. Where it is found to have occurred, the weight to be given to the need to protect a child or children from that abuse must, necessarily, be greater than the weight given to the benefit to the child or children of having a meaningful relationship with the parent who is the abuser. Statutory effect has actually been given to this principle with the amendment to s 60CC(2) of the Family Law Act 1975 (Cth) (FLA) in mid-2012 to include s 60CC(2A) requiring greater weight to be given to the second of those ‘primary’ considerations in proceedings commenced from that time on.
It is critical, however, to remember that not all allegations of sexual abuse are well-founded. Sometimes parents deliberately fabricate allegations of sexual abuse in order to gain an advantage in parenting orders proceedings. Other times, parents acting in good faith may make allegations that are not correct based on their misperception of information from and about their child. This Court has to be extremely careful in parenting proceedings to determine those cases where sexual abuse has or is probably occurring from those where the allegations are not true. Cases involving allegations of sexual abuse are, frankly, amongst the most difficult that this Court has the onerous responsibility to determine.
False allegations once made can, depending upon the extent to which the child or children become embroiled in the making of them, lead to ongoing psychological abuse of the child or children. If a parent actually believes, wrongly, that their child has been sexually abused by the other parent or that the other parent has acquiesced in such sexual abuse, that parent’s parenting of the child can become psychologically abusive. Children need to be protected against the harm they suffer from such psychological abuse in the same way that they must be protected against the harm they suffer from sexual abuse.
In this case, the Court is being asked to make parenting orders in respect of the two children, 11 year old C and 9 year old E. When the Court is determining the appropriate parenting orders to make the best interests of these two children must be the paramount consideration.[1] In determining what orders will meet these children’s best interests, consideration must be given to a number of expressly listed “primary” and “additional” considerations, in addition to some other matters expressly set out in Part VII of the Family Law Act.[2] The process of determination is wide-ranging. That is made clear by inclusion in the list of “additional” matters to be considered the words “any other fact or circumstance that the Court thinks is relevant”.[3]
[1] Family Law Act 1975 (Cth) s 60CA.
[2] Family Law Act 1975 (Cth) s 60CC.
[3] Family Law Act 1975 (Cth) s 60CC(3)(m).
The process of determination must nevertheless be performed within the constraints of the statutory framework of Part VII. That Part begins with a statement of the objects of the Part and the principles underlying those objects. In cases such as this, I consider it worthwhile to set out that statement of objects and principles. It is as follows:
s 60B (1) The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2)The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Consistent with these objects and principles, the following considerations, expressly referred to as ‘primary’ amongst the considerations the Court must consider in determining what is in a child’s best interests, are “to be accorded particular importance in determining what order will best promote the interests of the child”.[4] They are:
i)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
ii)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
[4]Marsden and Winch (No.3) [2007] FamCA 1364 per Warnick and Thackray JJ at par 77.
In a parenting case where allegations of abuse, sexual or otherwise, of a child by a parent are made, the two “primary” considerations and their interplay take on critical importance.
Guidance as to how allegations of sexual abuse are to be considered and resolved in parenting cases, where the best interests of the children is the paramount consideration, was given by the High Court in the decision of M v M[5] in 1988 and by the Full Court of this Court in a number of decisions subsequent to that High Court decision.[6] Section 140 of the Evidence Act 1995 is also directly applicable, as are the matters mentioned in the very old High Court decision of Briginshaw.[7]
[5](1988) 166 CLR 69.
[6]See, for example, N and S and the Separate Representative (1995) 19 Fam LR 837, W and W (Abuse allegations: unacceptable risk) (2005) 34 Fam LR 129.
[7](1938) 60 CLR 336, particularly at page 362 per Dixon J (as he then was).
This Court should not make a positive finding that an allegation of sexual abuse is true unless it is satisfied on the balance of probabilities that the allegation has been proved, regard being had at the same time to the seriousness of the allegations, the inherent likelihood of that which has been alleged actually occurring, and the gravity of the consequences flowing from a particular finding.
However, that said, an inability to make a positive finding that an allegation of sexual abuse is true is not the end of the critical process of determination. Should the Court be unable to make a positive finding that an allegation of sexual abuse is true, but nevertheless at the same time be satisfied that parenting orders for a child or children to live with a particular parent, or to spend time with a particular parent, would expose the child to an unacceptable risk of sexual abuse, such parenting orders should not be made.
As the High Court recognised in M v M,[8] just as there will be some cases in which the Court is able to come to a positive finding that the allegations of sexual abuse are well-founded, so, too, will there be cases in which the Court has no hesitation in rejecting the allegations as groundless. What must then follow, of course, in such cases, will be consideration of the matters and issues raised by such rejection of the allegations, particularly as to whether any psychological abuse of the children is occurring, or could occur, as a consequence. Clearly, if the Court is then satisfied that there is an unacceptable risk of psychological harm to the children if particular parenting orders are made in favour of the parent who has made the allegations that have been rejected, those particular orders must not be made, but rather orders should be made that will balance the need for protecting the children from such harm with the need for them to have a meaningful relationship with that parent.
[8](1988) 166 CLR 69.
Although generally in cases where sexual abuse allegations are made, the consideration and determination of the allegations of sexual abuse will be at the heart of the process of determining parenting orders that will best protect and promote the interests of the children, all of the considerations listed in s 60CC of the FLA must nevertheless still be considered by the Court as part of the process.
Of course, the Court must still consider the application, or otherwise of the presumption of equal shared parental responsibility, and, if the Court decides to make an order that parental responsibility be shared equally by the parents, it must go on to consider the questions going to whether or not orders for the child to spend equal time or substantial and significant time with each parent are in the child’s best interests and reasonably practicable. Then, depending on the answers to those questions, the Court must go on to make the parenting orders that it determines proper, with continued regard to the children’s best interests being the paramount consideration.
Some relevant background in this matter
The father is 46 years of age and in good health. He was born in New Zealand. The mother is 42 years of age and in good health. She was born in South Africa. They met in New Zealand in 1996.
The father was married previously. There were two children of that marriage. The father and his first wife were members Religion F. Due to an extra-marital relationship the father had during his first marriage, he was excommunicated from that group and not permitted, by his former wife acting in accordance with the tenets of that group’s beliefs, to have any contact with his two children. Those two children are now adult and the father concedes they do not wish to have relationships with him.
The mother and the father married in New Zealand in 1998, commencing to live together at that time. They moved to live in Australia shortly after their marriage.
The mother works in the education sector and the father is a tradesman, now working in an education role in his industry.
Although he was excommunicated from Religion F, the father has continued to profess Christian beliefs. The mother has too. The father himself describes the mother as “a devout Christian”.
After their move to Australia, the couple lived in Victoria for 5 years, the father working as a tradesman, the mother working in the education sector. They then travelled around Australia by caravan for a couple of years before they settled in the Town G area of Queensland. C was born in 2002 and E was born in 2005. By the time of E’s birth her parents had bought a shop in Town G and were running a business there. The father began working long hours in that business.
The parties’ marriage relationship began to experience difficulties. Queensland Police records adduced in evidence reflect the recording of a complaint by the father on 13 June 2007 that the mother had threatened him at work and had slapped him on the face on his return home after work and had approached him when he was in bed that night with what he believed was a knife. He reported that he felt scared of her and had left the home for the night and slept on the floor of the shop. The record reflects that he sought advice from the police about a domestic violence protection order against the mother but he did not make application for one.
By the end of 2007, the marriage had broken down completely and the father had moved out of the family home. He asserts that around that time the mother had said to him words like “if you leave, you’ll never see [C] and [E] just like you didn’t see your other children.” The mother denies that, effectively asserting that the father has made that up to help his case. I shall return to this matter later in these reasons.
The father moved to a home that he rented near to their family home and asserts that he sought to spend frequent time with the two children during the week and on weekends. The mother asserts that the father was quite selective about when he would have the children. She asserts he prioritised his own life and other relationships above continuing his relationships with his children. The father attached to his trial affidavit a roster that he said he and the mother had worked out together which was the roster by which they were to co-parent the children. It certainly shows that the children were to spend overnight time with the father on 6 nights each fortnight. The mother does not deny that they had agreed to this rostered arrangement in her evidence that responds to the father’s, but rather simply says that the father would just let them down on the days he was to have the children pursuant to that roster.
The absence of a denial on that from the mother causes me to be satisfied that the roster was something they did agree upon. At that point in time, December 2007 to May 2008, C was 5 and E was only 2 going on 3 years of age. That roster, in my view, is evidence that at that point in time, the mother was not troubled too much at all about the father’s capacities to care for the two young children. Her apparent agreement to them spending that much time with him at that time is reflective of that.
The father also attached to his trial affidavit a document that he described as a “written plan for parenting” that the mother had drawn up and sought his agreement to. That document lists three pages of parenting “dos” and “don’ts”. The father highlighted in his evidence that one of those instructions from the mother in the plan was:
Don’t allow anyone to give ‘special attention to the kids’. Might be a pedofile [sic]. DON’T TRUST ANYONE!!!!!
I understand the father to be highlighting that to support a submission that the mother at that point in time was already unduly focused on the risk of the children being sexually abused.
Police records reflect a complaint made to them by the mother in March 2008. The records note that she reported that she and the father had argued at the time he was returning the children to her care after having spent time with them. She is recorded as having reported that C fell from the father’s arms and landed on the floor and that when she then criticised the father for poor parenting he slapped her across the face. It is recorded that the mother did not want any action taken against the father on that complaint.
The parties participated in mediation with Relationships Australia in late April 2008. They agreed to matters involving the parenting of the children and the time the children were to spend with the father. They agreed to the children spending three weekends out of four with the father and for him to babysit them for an hour on three evenings each week so the mother could go for a jog. Again, that satisfies me that the mother appeared, thereby, to have no major concerns about the father’s capacity to appropriately care for the children for such periods at that time. She asserts the father never stuck to this parenting plan, however, very shortly after the plan was agreed upon the mother unilaterally moved with the two children from the Town G area to Town H, a town about 140 kms away, a drive of between 1.5 to 2 hours from where the father lived.
Although there is some inconsistency between the father’s evidence and the evidence of Ms J, the father’s new partner, as to when they commenced a relationship, it seems clear that they commenced their relationship sometime in 2008. Ms J is a woman with six children of her own from two previous relationships. Ms J was living in Town I when she and the father started their relationship, but later, in January 2009, she moved with her children to live in Town H.
The father asserts that during 2008, after the mother and children moved to Town H, he would spend time with the children, either staying at the home of the mother and the children in Town H or by collecting them from Town H and driving them back to Town K for the weekend before returning them to Town H at the end of that time. The mother asserts continued inconsistency of commitment on the father’s part to spending time with the children.
Through 2008 and into 2009 the parties were also having difficulties finalising their joint financial affairs and property division.
Interestingly, the father asserts that he actually stayed at the home of the mother and the children on Christmas Eve in 2008 and for Christmas Day. The mother says she does not remember this but does not deny that he did stay. I accept that it happened and reflects the mother’s relative comfort with having the father in her home with the children at that time. Clearly, there was sufficient respite in their conflict, at least at that time, for that to occur.
I am satisfied that in or around March 2009, the father began to introduce the two children to Ms J and her children during the weekends when his children were in his care. It was clearly much easier for him to collect them from the mother’s home in Town H and take them to stay with him at Ms J’s home in Town H rather than making the long trip back to Town K for the weekend.
I am quite satisfied that the mother did not approve of Ms J and did not like the father taking the two children to her home to be around her and her children whilst they were spending time with him. The mother and Ms J had known each other in the past and the mother also began communicating with the man who had been Ms J’s partner around this time, even entertaining him in her home.
There is evidence in the documents copied from the files of the Queensland Department of Child Safety that were admitted into evidence that on 23 March 2009 the mother rang and spoke with a departmental officer to raise concerns about the father allowing the two children to drive in the back of a car with three other children between Town K and Town G without suitable car seats and restraints. The file note records the mother having told the officer that C really missed his “daddy” and that the father had inappropriately left the children with a neighbour when he had to “run across the road to the fire station (as a volunteer fire fighter) to open the doors”. The file note records that participation in a post-separation co-operative parenting program might be useful and the matter was assessed as presenting no indication of harm having occurred to the children or that either child was at an “unacceptable risk of harm”.
The evidence established that on a weekend that I am satisfied was the weekend of the 10-12 July 2009, the father picked the two children up from the mother’s home in Town H and an argument took place between the parents. I accept that it was an argument about the mother’s friendship with Ms J’s former partner and that there was animosity expressed towards that man by the father. After that argument, the father took the children to stay with him at Ms J’s home in Town H on the Friday night without informing the mother that is what he was going to do. The mother asserts she was worried for the children having regard to the things she asserts the father said and did when he left with them in his car. The mother continually rang the father’s mobile telephone, having tried his home phone number in Town K with no answer. She contacted the police and requested that they go and do a “welfare check” on the children. Town H police contacted the father and checked on the children at Ms J’s place and Town G police were involved also. Town G police went to the father’s Town K unit on the Friday night and the Saturday morning and found no person at home. They went there again on Saturday night and found the father and two children at home. Police records reflect that police had no concerns for the children or the father when they checked. Indeed, the police records note that the reporting officer “believes the welfare check was a malicious activity by the informant [the mother] as there was no basis for any welfare concerns”.
I do not make a finding that it was “a malicious activity” by the mother, but I am satisfied that it did partly reflect her unhappiness with the father taking the children to spend time with Ms J and I am not satisfied that the mother’s unhappiness with that was solely attributable to concern about Ms J’s parenting capacities.
The father asserts that the mother’s criticism of his parenting of the children significantly increased from around this time. In fact, the mother wrote him a letter on Sunday 12 July, 2009 (that same weekend), in which she accused him of causing “constant emotional abuse” in the lives of her and the children and told him he was no longer welcome at her home, and that he would now have to abide by new, unilaterally determined, stricter conditions of communication with the children and with her about the children. The letter, which the father attached to his trial affidavit, without actually expressly saying so, clearly reflects the mother’s expectation that the father would not take the children to Ms J’s Town H home on the weekends they were with him,.
The mother wrote another letter to the father soon after, on 24 July 2009. In that letter, the mother informed him that she was unilaterally terminating the “parenting plan” that they had in place; no longer agreeing “to anything on it, or very little” and that she was going to re-write it “asap”. She also notified him in that letter that she had unilaterally determined to take the two children with her to South Africa at Christmas time that year as she “needed to go” and see her mother. I am satisfied that much of the mother’s change of attitude towards the father at this time emanated from her feelings about his relationship with Ms J that was clearly growing stronger at that time. She finished that letter by saying:
Under NO circumstances are anyone [sic] allowed to supervise my kids. Not [Ms J] or anyone.
The parties had some more mediation around that time. Another parenting plan was produced. The mother signed it in late August 2009. It began with the following, written under the heading “General Principles”:
Although [the father] has decided to no longer be married to [the mother], we will both agree to do what is best for our children. We agree that the children have close relationships with both of us as long as they want that to continue.
The parenting plan provided for the children to spend two weekends per month with the father from 4:30 pm on Friday to 4:30 pm on Sunday and one week during the Summer school holidays. It included the statement that the parents agreed:
That we will advise each other of any proposed travel or overnight visits outside the usual residential arrangements.
Relations between the father and the mother appear to have continued to deteriorate from then on, particularly as the father began spending more and more of his weekends with his two children at the home of Ms J and her six children.
The father has set out in his evidence transcripts of text messages the mother sent him from early November 2009 to July 2010. Whilst the mother’s text messages must be viewed in the context of the father not setting out the transcripts of the messages he was sending to the mother at the same time, it is quite clear that the content of the mother’s text messages to the father included abuse, vulgarity, obscenity and denigration of the father and Ms J. On the evening of 8 November 2009, the mother sent him a message that included the words:
… you fucken sperm donor and nothing else, pathetic loser … Go see a fucken head doctor.
On 9 November 2009, at 6:49 am, the mother sent the father a text that read:
Listen to me. You know already what some of the feelings are about you. You never do sexual things in front of my kids again or I will make a case against you. You do not dress in women’s undies, hop in with 5 little boys in a shower etc. making as if you are funny but meantime you know in your heart you a sick [sic] perverted bastard. Keep my kids out of it or you’ll never see them again.
The father seeks to explain the reference to the shower, with evidence that he had taken the two children and Ms J’s six children to the beach on that weekend (of the text message just referred to) that the two children were with him and that they had become covered in sand. He asserts that when they returned home to Ms J’s home all the boys hopped into the shower to wash the sand off their bodies. He asserts they were all wearing their bathing costumes. He asserts there was silliness going on and that he jumped in to join the boys in the shower and that he, too, was wearing his bathing costume. He asserts that they were all doing a conga line through the shower (a big shower space with two shower roses).
In her affidavit in which she responds to the father’s affidavit evidence, the mother simply responds to the father’s evidence about that particular matter with the words “according to [C], they were all naked, including Dad”. In an earlier affidavit, the mother said that that on the weekend of 9 November the “kids” told her that their father “came running out with [Ms J’s] white undies on, nothing else”. She also said that C said that his father had “stripped off and hopped in the shower while he and [Ms J’s] five boys were in the shower”. There is no other evidence about these matters. The father was not cross-examined about the circumstances or the events. In the circumstances, I am not prepared to make a finding that he showered naked with all of the boys at the same time as they were in the shower naked.
Although in her earlier affidavit the mother asserted that the following weekend the father and Ms J caused the children to have their hair cut without the mother’s permission, I am satisfied from the transcript of the text messages said to have been sent to the father on 8 November 2009 that it was the same weekend as the occasion when the father showered with all of the boys. The evidence demonstrates that the mother was very angry with the father for having the children’s hair cut. It was an issue that prompted angry text messages from the mother to the father for some time afterwards.
On 14 November 2009, the mother sent the father a text informing him that the children were staying with her for that weekend as:
[C] doesn’t want to go and I’m def not sending [E] on her own.
A little while later on the same day, the mother sent another text saying:
I hope you realize that you chose someone whose aim is to get you totally out of [E] and [C’s] life. I guess you won’t have a problem with that. Was pretty easy for you to walk out of your other two kids lives.
Two days after that, the father received a text message from the mother telling him that she needed to talk to him “asap”. His evidence is that he phoned her back, to be told by her that she wanted to move with the children back to live in Melbourne. His evidence is that he told her he did not agree with that proposal and that she cried and begged him to agree to let her and the children move away from the area where they were living. His evidence is that he told her if she left he would have solicitors seek an order for recovery of the children. His evidence is that he then received another text from the mother a few minutes later in which she said:
Start fighting then. I’m going to move to Melbourne. You won’t stop me.
That same night the father received another text from the mother. It said:
And I’m giving you warning now the kids are not coming to you this weekend as they have a birthday party and [C] refuses to go to you.
On 18 November 2009, the father received another text from the mother. It said:
How can I be good mother and let my kids go and stay with someone who took it one [sic] herself to cut my kids hair etc. Her jealousy causing harm to my kids is not tolerated. We all know that is what she wanted. For me to get upset and not send my kids there anymore and then I look like the evil one. Well tell yourselves whatever you want, I need to protect my kids.
On 20 November 2009, the father received another text from the mother. It said:
I really don’t want my kids taken off me this weekend.
The father gives evidence that he went to the mother’s house on 30 November 2009 to drop off some shoes for one of the children. He was accompanied by Ms J’s teenage daughter who he had just picked up from a school open day. His evidence is that the mother said to him that he was only with Ms J because of her teenage daughter and that she used the word “paedophile”. The mother denied those assertions with a simple bald denial. I reject that denial and am satisfied that she said something like that to the father that day.
In the December-January school holidays of 2009-2010, the mother took the two children with her to South Africa for five weeks. The father’s evidence is that on Christmas Eve he received a text from the mother from South Africa that included the following:
I don’t want you phone kids tmw as you should spend it with your family, [Ms J] and her kids. The one you spend all your money on. You give Fuck all support to my kids, why can’t you let us stay here, then you can stick your lousing [sic] 100 dollars up your arse as well.
The father says he rang South Africa to speak with the children on Christmas Day. His evidence is that the mother did not want to let him speak with the children and was telling him to leave her and the children alone but that E overheard and asked to speak with him. He was able to speak with both children. The mother denied these assertions, but having regard to the text she had sent the father the day before I consider it more likely that the father’s evidence about what happened is true and I accept it.
The father’s evidence is that the children spent a few weekends with him after they returned to Australia but that on Friday 26 February 2010 the mother sent him a text during the day telling him that she was going to pick the children up from school as they “really refuse to go to [Ms J].” His evidence is that he asked for them still to be allowed to come but that the mother would not change her mind. He said he even went over to the mother’s house to pick the children up later that day after school and that they were in the car ready to leave with him and the mother opened the car door, unbuckled them and then took them back inside. The mother said in reply that she has no recollection of this. I accept it happened.
The father’s evidence is that a couple of hours later, he received a text from the mother which said:
So you two must be very proud of yourself. Were mean enough to my kids so they don’t want to go to you for weekends. Is it all about saving yourselves some money?
The father’s evidence is that he then drew up a further parenting plan with the intention of having it made into Court orders by consent. He said that he presented it to the mother but that she refused to agree to it. He attached it to his trial affidavit. It has handwriting on it. In handwriting that he asserts is the mother’s, where the following words are typed in the plan:
The intention is that over a period of a year the children shall spend 100 nights with the father
the words “NO WAY. GET FUCKED” are written.
In the draft parenting plan, where there is a paragraph about the children spending time with each of their parents on their birthdays and Christmas Day the following words are hand written in the same handwriting:
NO if ever child has a birthday they’ll spend it with mum who is their caretaker and provider 95% of the time. Same goes for Xmas. I do the work and providing why should you have that privilege!
The mother makes no denial about these matters. She simply asserts that “in good conscience” she could not sign the draft plan.
The father’s evidence is that he received a text from the mother on 27 February 2010 as follows:
You know they say we are on this earth for a reason. I guess yours is to make children and then spend the rest of your life making sure they hate you.
On 26 March 2010, the father said he received another text message from the mother. It said:
If you gave me permission to go and live back in s a with my mum I would leave yesterday.
He said he received a number of text messages from the mother on Sunday 27 March 2010, the last one of which included the final words:
Fuck we have to get out of here away from you. Youre [sic] are destroying them.
The father said that on 28 March 2010, the mother told him that the children would not be spending time with him for Easter as he said she had previously agreed to. The mother denied that she had previously agreed to letting them spend time with him over Easter that year but I am satisfied she had. The father received the following text message from the mother on the night of 30 March 2010:
You know what. Fuck you. Easter and Christmas is a special time for a family to be together. Me and kids are a family. You are no longer part of our family. The kids will stay with me. You stay with your family.
Notwithstanding that message, the children did actually spend some days with the father during those Easter holidays but the father sets out in his trial affidavit further abusive text messages he received from the mother during the time the children were with him, including one that included the words:
Fuck you and [Ms J] for trying to turn my kids against me.
The father’s evidence is that then the next time the children were to be with him there was quite a scene at the mother’s home when he was picking them up. He said that the mother was saying:
Mummy loves you so much … Mummy doesn’t want you to go either.
He said that E was quite upset but that she settled down very quickly when they got to Ms J’s home. Again, the mother just baldly denies the father’s assertions.
The father said that on the weekend of 1 May 2010, E did not go back with him to Ms J’s house after they had been to football on the Saturday morning and she went home with her mother. The father said he received a text message from the mother at 1:45 pm that day saying:
Please note that you are suppose [sic] to have the kids. Also note that [E] refuses to go to [Ms J’s] house. So if you really gave a shit about your kids, wouldn’t you then take just the two of them for the day and do something?
The father said that he received a text message on 4 May 2010 from the mother that said:
Amorous narcissist. Mental disorder characterized by exgtreme [sic] self absorption and exaggerated sense of self importance and a need for attention and admiration from others. Get yourself help before you lose your children. Problem is. ‘the individual cannot see their ill affects’ [a misspelling of E’s given name].
On 19 and 20 May 2010, the father received a string of text messages from the mother in which she was putting various child support proposals to him. In one of them she put the alternative proposal that the father give her permission to move away. In the last of them she got very abusive and finished with vulgar abuse.
The father gave evidence that on Sunday 30 May 2010 he took the child C home after he had spent time with him. The father said the child had a “small bruise” on his leg that the father said had been caused by play in the yard. He said the mother told him she was going to take C straight to hospital to get it documented. The mother does not deny that but simply asserts the bruise “was NOT small”. The father said the mother then rang him later that night and yelled at him for having mentioned to C that he might marry Ms J. He said the mother told him that telling C that “emotionally traumatizes” the children. The mother, in her response, simply agreed with these assertions.
The father said that on 15 June 2010 he received a text from the mother which said:
Abuse, you let my kids go to her place knowing that her two kids are sick and then split them so that one each can be with one of her kids, that is fucken abuse. 250 dollars you are costing me today [an abbreviation of the father’s first name]. And you can just not give a Shit. I will write … every single fucken avidavit [sic] he needs. I have been keeping records of everything every weekend. Every time her [L] hurts my kids, you showering with all the boys, doctors records. Have taken kids every time to my south African doctor friend he has got everything on file. Fuck both of you, watch me.
The mother makes no response to that assertion of the father in her evidence.
The father gives evidence that on 25 June 2010 when he was driving to Town H to collect the children for the weekend with him, the mother told him that the children would not be coming to him that weekend. He said that he told her that they needed to get Court orders in place so that the arrangements could not simply be changed all the time. He said that the mother responded by telling him that she would fight him in Court so that he could only see the children at M Contact Centre as he was not properly looking after them as they were always coming home to her sick.
The mother responded in her evidence by saying that the father “seeing the kids at M Contact Centre was my way to put an end to their suffering”.
The father said in his affidavit evidence that on a weekend in the middle of July 2010 he and the children stayed at Ms J’s Town H home when they were with him. He said that on the Sunday morning C and E came into the bedroom that he was sharing with Ms J and jumped into bed with him and Ms J. He said that C was still night bed wetting. The father said that he recalls he leaned over to C and put his hand on his groin area and noticed his pyjama pants were wet. E was in the middle between the father and Ms J. Some of Ms J’s younger children had also come into the room and jumped into bed with them.
The father said that on Friday morning 23 July 2010, at just before 7 am, he received another text message from the mother. It was a long message, about the father but not written to him. It ended with the sentence:
Again I note, this man is emotionally abusing us and totally trying to destroy our lives here in [Town H].
The father said he texted the mother in reply and she then sent another back to him saying:
Was suppose to go to my folders sent it to you by accident, arsehole.
The mother offered no response in her affidavit.
The father said that on the next morning, Saturday 24 July 2010, he received a text from the mother saying nothing other than “Kids are sorted”.
The father’s evidence is that he then received a phone call from the police on 26 July 2010 asking him to attend the police station for an interview. He did and the police told him there that allegations had been made that he had sexually abused the children. In that interview, he denied and he still denies ever having inappropriately touched the children. He told the police that he thought the mother never had issues with the children spending time with him at his Town K home but that ever since he had been taking the children to spend time at Ms J’s home, she had not approved.
The father said that from that weekend the mother would not permit the children to spend time with him or speak with him on the telephone.
The Allegations of Sexual Abuse
In her affidavit filed 3 September 2012, the mother gave evidence that on the morning of Friday 23 July 2010 (the very same morning on which she had sent the texts just referred to that contained very angry messages), C was sitting on the floor, putting on his shoes for school and E was at the table in the same room. She said that C then just said “you know mum, dad does something very wrong. He touches our rude parts”. The mother said in her evidence that she replied “no, your Dad won’t do that.” She said that E then added “yes, he does, he does it to me too. He touches my private parts.” She said that C then said “I’ve seen him do it to [E].”
The mother then said E showed me what the father does by rubbing her hand up and down her private parts, that she told the mother that the father starts by rubbing her back, then her bottom and then he goes “to the front”. The mother said that E then said sometimes he does it over her clothes and sometimes he does it under her clothes. She said that the children said that their dad “is doing it especially when he is drinking his coke and he stinks”.
The mother’s evidence is that E then said that N (Ms J’s fourth son) was also doing it to her but that he only did it over her clothes and not under her clothes like her dad. The mother said that E told her that her dad had done it lots to her but that N had only done it twice.
The mother’s evidence is that C went on to say “mum, you know how embarrassed I get when mine is hard” and that he went on to say that his dad laughs and then rubs it up and down.
The mother said that she took the children to the police station in response. She did that on Sunday 25 July, and both children were interviewed separately in video recorded interviews. Both of the interviews were recorded on DVD. Copies of those were admitted into evidence in the trial and watched in Court during the trial and by me several times in chambers since the trial concluded.
The family consultant appeared quite impressed with the fact that Ms J and her six children presented as a close-knit cohesive family unit and that all six children were very positive in their comments about the father, with all seeming content in his company. The family consultant also indicated that Ms J impressed as a capable parent who provided her children with consistent rules and boundaries, not a parent who would risk the safety of her children for the sake of her couple relationship. The consultant expressed the opinion that if Ms J suspected that the father had harmed or was likely to harm any of her children she would have no hesitation in ending her relationship with him. She observed that shortly after the alleged disclosures of the two subject children in July 2010, departmental officers had interviewed all six of Ms J’s children and Ms J and none were considered to be at risk from the father.
The family consultant said that despite the departmental findings of “substantiation”, she was unable to arrive at any firm conclusion as to whether the father sexually abused C or E. She did say that she did think some of the father’s past behaviour had been emotionally abusive of the children though and that the children had been emotionally impacted by their parents’ dispute and by their mother’s generalised anxiety. She did note that the children both were recorded as enjoying their interaction with their father at the contact centre and that she observed them engaging well with him in her interviews and observation of them. She said that she observed E to appear quite relaxed sitting on the floor between her father’s legs even though she had said she did not want to keep seeing him.
The family consultant ultimately expressed the opinion that it is not surprising that neither child expressed a wish to see their father outside the child contact centre, considering the allegations that had been made over time, the departmental involvement, and the counselling the children had received, particularly around protective behaviours and safety. She particularly saw Ms J as a protective factor though, and a person quite capable of ensuring the safety of C and E whilst in her care and with the father in her presence. The family consultant said “in this scenario, she would assess the risk of harm to the children as low.”
The family consultant recommended that the children live with the mother and that if the Court determined that they continue to be at an unacceptable risk of harm in the unsupervised care of the father that they should continue to see him at the contact centre. But if the Court determined that they are not at a risk of harm in the father’s unsupervised care then they should spend time with their father and Ms J in a graduated schedule, commencing with weekend day time periods on a fortnightly basis for three months, increasing to an overnight on the Saturday night each alternate weekend for three months, and thereafter alternate weekends from Friday after school until Sunday night and with consideration being given to the children spending a week in each school holiday period commencing after about a year.
The Mother’s Attitude towards the Father and Ms J
I have already mentioned the father’s evidence that the mother told him in 2007 that if he ever left her he would not see the children. Ms J also gave evidence that sometime around 2005, she and her former partner were having dinner at the home of the father and the mother whilst they were still in an intact relationship. She said that she spoke to the mother and father about the fact that her four oldest children were visiting their father’s home at that time, when the mother said “if [the father] ever left me he would never see his kids again.”
Ms J was not challenged on that and it was not denied in affidavit evidence, although the mother denied that she had said to the father what he alleges she said in 2007. However, particularly having regard to the content of the text messages the mother sent to the father during the period of separation until the sexual abuse allegations were made, I am satisfied, on the balance of probabilities, that the mother did say these words to the father and to Ms J as they have deposed to.
Of course, the evidence does not disclose that the mother prevented the children seeing their father after separation, at least for a couple of years, and even then, not totally. It does disclose though that she was very angry with the father about the breakdown of their relationship and when it became clear that he had entered a new relationship, the mother became even angrier with the father and also with his new partner. The evidence discloses that the mother would happily have moved with the two children back to Melbourne or even South Africa if she could have, without any apparent regard for the consequences of such a move on the relationships of the children with their father.
Ultimately, I am quite satisfied that, although the mother might not have maliciously and deliberately made up allegations that the father had sexually abused the two children so as to prevent him from having an ongoing relationship with them, that the moment in July 2010, when what was an inappropriate way to deal with the bed wetting of the boy C by the father was outlined by C to the mother, was the beginning of a series of events that unfolded in the way that they did due to the mother’s determination to take information that she considered showed sinister behaviour by the father and deal with it so as to prevent or seriously limit contact between the children and their father. The mother’s feelings towards the father and Ms J did not permit of any innocent explanation being accepted by the mother and the mother’s dealings with the matter from that point in time involved, I have little doubt, many conversations with the two children about the subject matter, emanating from the poor attitude the mother already had to the father, that reinforced negative attitudes by the children to the behaviour they were describing as well as embellishment by them over time, particularly with the child, E. In fact, it is evident from material contained in the family consultant’s second report about things E said to her about the content of the first report that the mother must have spoken in some detail to E about the content of the first report and prepared her to discuss with the family consultant these matters during the second interview.
In the end, I am far from persuaded that the father sexually abused these two children. In fact, I am quite satisfied that the children do not face an unacceptable risk of sexual abuse in the unsupervised care of their father. Accepting, as I do, the opinion of the family consultant in this respect, any such risk is even less if they spend time with him in the company of Ms J.
My findings should not in any way be taken to be criticism of the role that departmental officers played in the whole matter. Those officers are on the front line of response to these sorts of issues and have to act, as best they can, at the time according to their training and assessment of the evidence. They simply do not have the same advantage that this Court has in hearing and assessing all of the evidence when determining these matters.
The evidence satisfies me that the father and Ms J want to marry and live together making their relationship a permanent one of commitment to each other. Their attitudes to the need to await the outcome of these proceedings, particularly in respect to the sexual abuse allegations, demonstrated a very mature and sensible approach by them to this issue. I am optimistic that if they demonstrate such a mature and sensible approach to the reintegration of C and E into their household on the occasions that they are to spend time with their father pursuant to the orders I will make, the transition back to a happy blended family circumstance should be able to be achieved.
The Orders that will be made
At the end of the trial, Ms McArdle, counsel for the ICL, Ms Dart, handed to the Court a draft of a very comprehensive set of orders prepared by both of them which Ms McArdle submitted the Court should make having regard to all of the evidence. That draft was prefaced on the basis that there is no finding that the children face an unacceptable risk of sexual abuse in their father’s unsupervised care. As I understood the submission, Ms McArdle for the ICL submitted that I would not find that the children face an unacceptable risk of that kind. As I have observed already, my findings are in line with that submission.
I do not consider it necessary to go through each and every order proposed by the ICL and to discuss the merits or otherwise of each one or to give reasons in respect of each one. I consider the draft of the orders that were proposed by the ICL to be well thought out and comprehensively addressing in an appropriate way the matters that should be subject to parenting orders to be made in this case, including as to the conferral of parental responsibility.
Even though in the witness box, the mother said that she could accept equal shared parental responsibility, Ms McArdle submitted that the extreme difficulties that these parents have demonstrated they have with communication with each other would prevent equal shared parental responsibility from being able to work in practice. I accept that the evidence in this case supports that submission. I do not accept that the mother’s assurance given in the witness box actually reflects her true feelings about the issue but rather was her saying what she considered was the appropriate thing to say at the time. I do not accept that the two parents could communicate well enough with each other over time for equal shared parental responsibility to work in the best interests of the two children. I will not order that it be conferred.
The draft orders proposed by the ICL include requirements for consultation between the parents that provide ample opportunity for the father to have input into any decisions in respect of major long-term issues in the children’s lives. I consider that sufficiently in the children’s interests to order it.
I have made a couple of amendments to the draft orders proposed by the ICL, most particularly to reflect changes to dates having regard to the length of time that my judgment has been reserved since trial. However, in addition, I accepted the submission made by Mr Page QC for the father that the two counselling sessions for each of the children provided for in paragraph (6)(a) of the Orders upon which a move to unsupervised time with the father are conditioned should be required to take place within a finite time from the date of the orders, so that there can be no delay caused inappropriately. I consider the time limit for that should be six weeks.
I am satisfied that it is in the best interests of these two children to have an ongoing, meaningful relationship with their father. I consider that best facilitated at this point in time by way of the gradual reintroduction of unsupervised time in his care provided for in the draft orders, along with the counselling that each child and each parent will receive at the same time.
I make the orders set out at the commencement of these reasons for judgment.
I certify that the preceding one hundred and ninety (190) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 22 May 2014.
Associate:
Date: 22 May 2014
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Jurisdiction
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Natural Justice
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Procedural Fairness
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Remedies
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