Tamela & Hester
[2023] FedCFamC1F 969
•15 November 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Tamela & Hester [2023] FedCFamC1F 969
File number(s): MLC 4237 of 2022 Judgment of: MCNAB J Date of judgment: 15 November 2023 Catchwords: FAMILY LAW – PARENTING – Magellan List – Where the mother has made repeated allegations of the father sexually abusing the daughter – Where allegations of sexual abuse are unsubstantiated –Where the mother has subjected the daughter to medical examinations - Where the mother has paranoid ideations in relation to the father – Where the mother has failed to file any trial affidavit – Where the Court ordered that the hearing proceed on an undefended basis - Where a longer block of time with the father may create less opportunity for the mother to negatively impact the health of the children if she is minded to do so and may provide some safeguards for the children. Legislation: Family Law Act 1975 (Cth) ss 4(1), 60B, 60CA, 60CC, 61B, 61DA, 64B, 65AA, 65D, 65DAA , 65DAC, 65DAE, 121(9)(g)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)
Cases cited: Bondelmonte & Bondelmonte [2017] 259 CLR 662
RCB & The Honourable Justice Forrest [2012] 247 CLR 304
Division: Division 1 First Instance Number of paragraphs: 75 Date of last submission/s: 13 November 2023 Date of hearing: 13 November 2023 Place: Melbourne Counsel for the Applicant: Ms Theoharopoulou Solicitor for the Applicant: Ms Justice Legal Counsel for the Respondent: Litigant in Person Counsel for the Independent Children’s Lawyer Ms Stavrakakis Solicitor for the Independent Children’s Lawyer Trapski Family Law ORDERS
MLC 4237 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR TAMELA
Applicant
AND: MS HESTER
Respondent
ORDER MADE BY:
MCNAB J
DATE OF ORDER:
15 NOVEMBER 2023
THE COURT ORDERS THAT:
1.The father have sole parental responsibility for the care, welfare and development of the children of the relationship namely X born 2015 and Y born 2016 (“the children”).
2.The children live with the father.
3.The children spend time with the mother commencing as follows:
(a)Commencing 24 November 2023, from the conclusion of school or 3:30 pm on Friday, until the commencement of school (or 5:00 pm on a non-school day) to the following Wednesday, and thereafter each fortnight. The fortnightly cycle is not to reset itself each term but continue through school holidays unless the parties agree otherwise in writing;
During school term holidays
(b)Commencing Term 2 School holidays 2024 for one-half of the school holidays as agreed between the parties or failing agreement, with the father in the first half commencing at the conclusion of school at 3:30 pm until 5:00 pm on the middle Saturday of the school holiday period and with the mother in the second half with her time to conclude the Sunday prior to commencement of school at 6:00 pm;
During Long Summer school holidays
(c)Commencing in 2024 for one-half of the school holidays as agreed between the parties. In default of agreement, on a week about basis commencing with the father for the first week;
Mother’s Day
(d)The children shall spend time with the mother for Mother’s Day, as agreed between the parties. In default of agreement, if Mother’s Day falls on a weekend when the children are not already spending time with the mother, from 12:00 pm on the Saturday before Mother’s Day until 6:00 pm on Mother’s Day;
Children’s birthday
(e)The children shall spend time with each parent for their birthday (if they are not ordinarily spending time with that parent) as agreed between the parties but failing agreement:
(i)on a school day from the conclusion of school until 7:00 pm; and
(ii)on a non-school day from 3:00 pm until 8:00 pm.
Mother’s birthday
(f)The children shall spend time with the mother on the mother’s birthday as agreed between the parties. In default of agreement, if the mother’s birthday falls on a day when the children are not already spending time with the mother:
(i)from the conclusion of school at 3:30 pm to 7:00 pm; and
(ii)if the birthday falls on a non-school day from 9:00 am to 3:00 pm.
Christmas
(g)The children shall spend time with each parent on Christmas as agreed between the parties. In default of agreement, the children shall spend time with the father and the mother as follows:
(i)with the father from 3:00 pm on Christmas Eve until 3:00 pm Christmas Day, time commencing in the year 2023 and alternate thereafter; and
(ii)with the mother from 3:00 pm Christmas Day until 3:00 pm Boxing Day, time commencing in the year 2023 and alternate thereafter.
New Year
(h)The children shall spend time with each parent on New Year’s Day as agreed between the parties. In default of agreement, the children shall spend time with the father and the mother on New Year’s Day in alternate years as follows:
(i)with the father from 3.00 pm on New Year’s Eve until 3.00 pm New Year’s Day; and
(ii)with the mother from 3.00 pm New Year’s Day until 3.00 pm 2 January.
Easter
(i)The children shall spend time with each parent during the Easter long weekend as agreed between the parties. In default of agreement, the children shall spend time with the father and the mother in alternate years as follows:
(i)in even years from 1:30 pm on Good Friday until 3:00 pm Easter Sunday commencing with the father;
(ii)in odd years from 3:00 pm on Easter Sunday until Easter Monday commencing with the mother.
Time Suspended
(j)That the time the mother spends with the children be suspended for the following occasions:
Country B New Year
(i)The children shall spend time with the father for the Country B New Year weekend, as agreed between the parties. In default of agreement, if the Country B New Year weekend falls on a weekend when the children are not already spending time with the father, from 12:00 pm on the Saturday of Country B New Year until 6:00 pm on the Sunday of Country B New Year.
Country C New Year
(ii)The children shall spend time with the father for the Country C New Year weekend, as agreed between the parties. In default of agreement, if the Country C New Year weekend falls on a weekend when the children are not already spending time with the father, from 12:00 pm on the Saturday of Country C New Year until 6:00 pm on the Sunday of Country C New Year;
Father’s Day
(iii)The children shall spend time with the father for Father’s Day, as agreed between the parties. In default of agreement, if Father’s Day falls on a weekend when the children are not already spending time with the father, from 12:00 pm on the Saturday before Father’s Day until 6:00 pm on Father’s Day;
Father’s Birthday
(iv)The children shall spend time with the father on the father’s birthday as agreed between the parties. In default of agreement, if the father’s birthday falls on a day when the children are not already spending time with the father:
A.from the conclusion of school at 3:30 pm to 7:00 pm;
B.if the birthday falls on a non-school day from 9:00 am to 3.00 pm.
Changeover
4.Changeover shall occur at the children’s school and outside of school hours as agreed between the parties in writing and in default of agreement at Hungry Jacks Suburb E.
International Travel
5.The mother and father be permitted to remove the children from the Commonwealth of Australia upon written consent of the non-travelling parent as follows:
(a)The travelling parent give no less than 45 days’ notice of any intention to travel overseas with the children including departure and arrival dates and proposed itinerary;
(b)The non-travelling parent to provide written consent or refusal for travel within 7 days after notification has been given;
(c)Upon confirmation and booking of the travel, copies of return flight tickets, itinerary, hotel accommodation and emergency contact numbers are to be provided to the non-travelling parent which is to occur no less than 14 days from the departure date;
(d)Travel occurs during school holidays;
(e)The travelling party shall ensure that their travel insurance includes coverage for the children during all such periods of their travel;
(f)Upon the children’s return from travel, make-up time be provided to the non‑travelling parent with such make-up time to be nominated by the non-travelling parent within 30 days from the day they return;
(g)During the time the children are overseas, the non-travelling parent shall communicate with the children via phone or Facetime on Thursdays for a duration of 30 minutes at a reasonable time; and
(h)Consent cannot be unreasonably withheld.
Interstate Travel
6.For interstate travel, the travelling parent will provide the other parent with written notification of the destination and duration of such travel within 14 days prior to the intended interstate travel. The non-travelling party shall respond to the request within 7 days of notice having been provided and will not unreasonably deny a request.
7.The travelling party shall facilitate liberal telephone, Skype and/or FaceTime communications between the children and the other party at reasonable times during all such periods of travel, failing agreement then on Thursdays and Sundays between 5:00 pm and 8:00 pm (of the time zone that children are present in) with the non-travelling parent to initiate the call.
8.The non-travelling party will be provided with makeup time for the time they miss with the children during the travel.
Passports
9.Each party shall do all acts and things and sign all such documents as may be necessary to cause each of the children to obtain or renew an Australian passport, with the father to retain the children’s passports for safekeeping except when required by the mother for the purpose of international travel with the children in accordance with these orders. In the event the mother refuses to do all acts and things and sign all such documents to obtain and renew an Australian Passport then the father be permitted to make a sole application.
Communication
10.The father and the mother shall facilitate the children communicating with either parent at all reasonable times as requested by them but failing agreement between 5:00 pm and 8:00 pm on each Thursday for the mother and between 5:00 pm to 8:00 pm each fortnight on a Sunday for the father for a 30-minute video call and for the parent wishing to speak to the children to initiate the call to the number nominated by the other parent and the children shall be afforded privacy during the call. That the parties shall forthwith implement the 'AppClose' application, or such other communication application as may be agreed by the parties with respect to day-to-day communication about arrangements for the children and their welfare.
11.The parties shall forthwith implement the ‘AppClose’ application, or such other communication application as may be agreed by the parties with respect to day-to-day communication about arrangements for the children and their welfare.
12.The parties advise the other of any change of telephone number or residential address within 24 hours of such change occurring.
School and Extra Curricular Activities
13.Both parents be at liberty to attend any extracurricular activities that the children are involved in.
14.Both parents be at liberty to attend any school events relating to the children’s attendance at school, including parent /teacher interviews, fetes, assemblies/awards ceremonies and concerts.
15.Both parents be permitted to communicate directly with the children’s school and sporting or any other relevant bodies to receive school notices, information, newsletter, school reports, school photographs and any other necessary information about the children’s progress at their own expense.
Medical Treatment
16.The parents shall authorise the children’s General Practitioners and treating medical and/or allied health practitioner/s to provide to either parent with any information or medical reports relating to the children at that parent’s cost (if any).
17.The parties advise each other as soon as practicable of any significant illness and/or injury suffered by the children or either of them whilst in their respective care, along with the names and contact details of any treating medical, dental, psychologist and/or allied health professionals so that each parent may liaise with same.
18.Neither party take the children to any counsellor, therapist, psychologist or other mental health professionals without the consent in writing of the other party.
19.Unless otherwise agreed in writing, the parties continue to attend upon the children’s regular General Practitioner in order to ensure continuity of care for the children, save for instances of emergency.
20.In the event the children or either of them requires admission to hospital (including attendance at an emergency department) or specialist treatment, then both parents shall be permitted to be present/attend same.
21.The mother shall not expose the children to any further forensic or medical examinations in relation to any allegations of child abuse, unless she has first reported such allegations to the Department of Families, Fairness and Housing (“DFFH”) and followed their professional direction. The mother shall provide written evidence of such direction to the father within seven days of receiving it.
Restraints
22.The parties and their servants and agents be and are hereby restrained from:
(a)Physically disciplining the children or threatening to physically discipline the children;
(b)Allowing the children to watch inappropriate and non-age-appropriate content and movies;
(c)Denigrating each other and their families to or in the presence or hearing of the children and permitting any other person to do so;
(d)Passing messages through the children to the other parent;
(e)Discussing parenting disputes and/or issues with or in the presence of the children or permitting any other person to do so; and
(f)Exposing the children to any conflict between the parties and their families or permitting any other person to do so.
Family Dispute Resolution
23.In the event the parties are in dispute with any of the Orders in the future, the parties are to first attend upon a Family Dispute Resolution Service to negotiate and discuss the issue before the parties undertake court proceedings.
Children’s Psychological Treatment
24.The children shall commence counselling with a child psychologist as soon as practicable.
25.The children shall attend at least one session per fortnight, or as directed by the psychologist.
26.The parents shall share the costs of the counselling equally unless otherwise agreed.
27.The parents shall provide the name and contact details of the psychologist to each other and to the Independent Children’s Lawyer (“ICL”) within seven days of commencing counselling.
28.The ICL shall provide the psychologist with a copy of the Magellan Family Report, dated 8 September 2023, and the Child Impact Report prepared by Dr D, dated 7 September 2022, and the Judgment in this matter, within seven days of receiving the psychologist’s details.
29.The ICL shall provide a copy of this Judgment to the Department of Families, Fairness and Housing.
30.The Respondent mother pay the Applicant father’s costs fixed in the sum of $15,000 within 30 days of the date of this order.
31.All extant applications be otherwise dismissed.
AND THE COURT NOTES THAT:
A.Pursuant to s.62B and s.65DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders are set out in the Annexure and these particulars are included in these Orders.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonyms Tamela & Hester has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
DELIVERED EX TEMPORE AND REVISED FROM TRANSCRIPTMcNab J
BACKGROUND
The applicant father is Mr Tamela, 47 years of age, and the respondent mother, Ms Hester, 55 years of age. There are two children of the relationship: X born 2015 aged 8 years and Y born 2016 aged 7 years. The parties began living together in late 2010 and separated on a final basis in October 2021.
The parties began living together in late 2010, and separated on a final basis in October 2021. The applicant father lives in Suburb E, in a property owned by the paternal grandparents, and is employed as an educator and studies part-time. The respondent mother lives in the former matrimonial home in Suburb F, Victoria, and is employed as an educator.
This application was commenced by an Initiating Application filed by the father on 22 April 2022 for final parenting orders seeking equal shared parental responsibility for the children in a week-about arrangement. At that stage, the father had not had contact with the children since 12 November 2021, when he spoke to them via Zoom.
The mother, in the Response to an Application in a Proceeding filed 9 May 2022 sought sole parental responsibility and that the children live with her, and that the father’s time with the children be reserved, pending the outcome of assessments sought on an interim basis that the father attend a psychiatrist, that a Child Impact Report be ordered and that a DHHS section 67W report be prepared. The mother made allegations of family violence and a final intervention order was made by consent without admissions protecting the mother and the father as respondent in late 2021, and that order expired in late 2022.
The mother filed a Notice of Child Abuse, Family Violence or Risk Assessment in late 2022 where she states she has reported to Victoria Police allegations of abuse by the father October 2020, December 2021 and November 2021. The allegations of abuse were listed as psychological and exposure to family violence in relation to X and emotional/psychological abuse, sexual abuse and exposure to family violence in relation to Y.
The father filed a Notice of Child Abuse, Family Violence or Risk in late 2022 alleging abuse by the mother and noting:
I have not reported the abuse or neglect to any authority because the evidence relating to the abuse or neglect or the risk of abuse or neglect is from two expert witnesses ordered by the Family Court and is documented in two psychological reports.
On 25 May 2022 orders were made by consent by a Judicial Registrar for the children to live with the mother. On 15 September 2022, with those orders amended on 27 September 2022, a Senior Judicial Registrar made Interim Orders that the children live with the mother and spend time with the father five nights a fortnight and half the school holidays, with Mr G or Ms J to be in substantial attendance during the father's time.
The father resumed time with the children in late September 2022. Orders were made by consent for the father and mother to attend for a psychological assessment upon Dr H or another suitable psychiatrist or psychologist as nominated by the ICL, for the parties to communicate using AppClose or other suitable application in relation to arrangements for the children and their welfare and that the mother attend the Tuning into Kids Program. Both parties were restrained from physically disciplining the children and from allowing the children to watch age-inappropriate content and movies. The ICL was at liberty to apply to the Court on short notice for appropriate Interim Orders including consideration of whether the mother’s time should be suspended.
A Child Impact Report was completed by Dr D on 9 September 2022 and released to the parties. That report highlighted concerns about the mother presenting with paranoid behaviour and noted the father presenting as low risk. She recommended resumption of meaningful time for the children with the father.[1]
[1]Magellan Family Report at [9].
A Senior Judicial Registrar made orders on 29 November 2022 for the matter to be referred to the Magellan Registrar for consideration, suspended all previous parenting orders and made orders for the children to spend time with the father three times a week: for three hours on a Wednesday afternoon and from 10 am – 5 pm each Saturday and Sunday.
The father’s time was supervised without admitting the necessity of same. He was at liberty to apply for time with the children to be unsupervised and increased to a week-about time upon the conclusion of ongoing Victoria Police and DFFH investigations. The mother was ordered to attend upon Dr K or similar psychologist for no less than seven sessions and to attend several parenting courses. The parties were ordered to engage with L Support Services for up to ten sessions. The mother has not attended upon Dr K or a similar psychologist or presented evidence that she has, or that she has completed any of the ordered parenting courses.
A Judicial Registrar made orders on 30 November 2022 noting serious allegations of sexual abuse warranting referral to the Magellan List and for a Magellan Report.
Orders were made by the Judicial Registrar with the consent of the parties on 6 February 2023 for the children to spend time with the parents on a week-about basis.
At a Case Management Hearing on 17 March 2023 Justice McNab noted there was no appearance for or on behalf of the respondent mother and ordered the matter be adjourned until 11 May 2023 at which time, if the mother did not appear, the court would hear submissions regarding making final orders on that day that would reflect the current spend time arrangements set out in the consent orders of 6 February 2023.
The final five-day hearing was set to commence on 13 November 2023. The mention proceeded on 11 May 2023 with the mother appearing.
The Magellan Report prepared by Mr M dated 8 September 2023 notes the children are living with the parents on a week-about basis. The Report Writer made reference to the report by Dr H dated 24 November 2022 which included “concerns [Ms Hester] was presenting with a personality disorder and raising nil significant concerns relating to Mr Tamela’s mental health.”[2] Mr M’s recommendations were:
[2]Magellan Family Report at [54].
A)Whereby the Court determines that allegations of family violence and sexual abuse are unsubstantiated, the following recommendations apply:
102. Consideration as to [Mr Tamela] being granted sole parental responsibility.
103. The children to reside with [Mr Tamela].
104. The children to spend time with [Ms Hester], five nights each fortnight, consideration as to Thursday to Monday, and Thursday‑Friday each other week. The children to be permitted to contact [Ms Hester] at a scheduled time at least once each week for a 30-minute video call.
105. School holiday spend time to reflect the above arrangement, with week about holiday time recommencing in the June-July school holidays 2024.
106.Consideration as to a clause, requiring [Ms Hester] to direct future disclosures/allegations of child abuse to child protection, in order to follow their professional direction prior to exposing the children to any future forensic or medical examinations.
107.[Ms Hester] to promptly commence counselling with a psychologist experienced in family law disputes and working with individuals with personality disorders. Consideration as to the practitioner being provide with a copy of [Dr H’s] assessment.
108. The children to commence counselling with a child psychologist. The practitioner to be given access to this Family Report and the Child Impact Report prepared by [Dr D].
109.The parents to complete a Parenting Orders Program ([N Support Services], [Suburb O]).
B) Whereby the Court determines the allegations of family violence and sexual abuse are substantiated, the following recommendations apply:
110. Consideration as to [Ms Hester] having sole parental responsibility.
111. The children to reside with [Ms Hester].
112. The children to spend no time with [Mr Tamela] on an indefinite basis.
113. The children to commence counselling with a child psychologist. The practitioner to have access to this Family Report and any Judgement made by the Court.
The father moves on a Further Amended Initiating Application filed on 18 October 2023. He seeks final orders for sole parental responsibility for the children of the relationship, that the children live with him and spend time with the mother five nights a fortnight. The ICL broadly supports orders in those terms. The mother has not provided a response to this application. The mother has filed no material in 2023. When addressing the Court on 13 November 2023, initially the mother told the Court that she sought orders that she have sole parental responsibility for the children and that the children spend no time with the father.
Subsequently she stated that the Court could make orders that the father spend alternate weekends from Friday to Sunday with the children and that she have sole parental responsibility.
EVIDENCE
The father relies on:
(1)Minute filed 13 November 2023;
(2)Affidavit of father filed 18 October 2023;
(3)Further Amended Application filed 18 October 2023;
(4)Affidavit of Dr D (Child Impact Report) filed 9 September 2022;
(5)Affidavit of Dr H filed by applicant on 24 November 2022;
(6)Magellan Report – Department of Families, Fairness and Housing filed 3 February 2023;
(7)Magellan Family Report filed 8 September 2023;
(8)Response to s 69ZW Order from DFFFH dated 2 October 2023;
The ICL relies on:
(1)Magellan Family Report filed 8 September 2023;
(2)Affidavit of Dr D (Child Impact Report) filed 3 February 2023;
(3)Affidavit of Dr H (Psychosexual Report of Father) filed 24 November 2022;
(4)Documents produced under subpoena (P Health Service, Q Hospital, Victoria Police) filed on various dates.
On 13 November 2023, the Court ordered that the proceeding continue on an undefended basis. It did so on the basis that the mother had failed to comply with Court Orders made on 6 February 2023, 11 May 2023 and 5 October 2023 for the filing of trial affidavits and outlines of case. The mother was aware that s 102NA applied to the proceedings and that she could access that scheme for the purpose of cross-examination of the father and she had failed to do so.
PARENTING PRINCIPLES
Orders in respect of children are made under Part VII of the Act, where the meaning of a “parenting order” is defined (s 64B). The Court may make such parenting orders as it thinks proper (s 65D), within the context of the objects of the legislation and the principles which underpin those objects (s 60B).
When making parenting orders, the Court is mandated to regard the child’s best interests as the paramount consideration (ss 60CA, 65AA). The Act specifies the criteria which must be considered in arriving at a conclusion as to what is in the child’s best interests (s 60CC).
The Act imports a rebuttable presumption that a child’s best interests are served by an order allocating equal shared parental responsibility for the child to the parents (s 61DA). Parental responsibility is defined to encompass all duties, powers, responsibilities and authority conferred by law upon parents (s 61B). The legislation dictates the manner in which shared parental responsibility is to be exercised in respect of decisions relating to “major long-term issues” concerning the child (s 65DAC), being matters such as education, religion, culture, health, name, and changed living arrangements (s 4), and also in respect of decisions which do not relate to such significant issues (s 65DAE).
The presumption of equal shared parental responsibility does not apply in certain circumstances, including in instances of child abuse and family violence (s 61DA(2)), and the presumption may be rebutted if the Court is satisfied it would not be in the child’s best interests for the parents to have equal shared parental responsibility (s 61DA(4)). The presumption says nothing about the amount of time the child should live or spend with each parent, but the manner in which parental responsibility for the child is allocated by the Court may bear on that issue.
In the event an order is made allocating equal shared parental responsibility to the child’s parents, the Court is then obliged to consider both the advisability and practicability of the child living for equal time with both parents, or alternatively, living primarily with one and spending substantial and significant time with the other (s 65DAA). If parental responsibility for the child is allocated in some other way, the exercise of the Court’s discretion about the child’s care arrangements is at large, though the discretion must still be exercised in the context of the child’s best interests being the paramount consideration.
PARENTAL RESPONSIBILITY
The presumption of equal shared parental responsibility is rebutted in this case by the very high level of conflict between the parties and the mutually agreed incapacity to communicate or parent co-operatively. For the reasons that I outline below, the best interests of the children are best satisfied if an order is made for the father to have sole parental responsibility.
I do not think there is any utility in having a proviso that there be a process of consultation prior to any decision being made by the father regarding the long-term interests of the children relating to health, religion and education. Any efforts at consultation are likely to lead to an escalation of tension between the parties and will probably negatively affect the children. I am satisfied that the father will act in the children’s best interests when making long-term decisions about the children when exercising parental responsibility.
BEST INTERESTS – PRIMARY CONSIDERATIONS
Section 60CC(2)(a)
The primary considerations are the benefit to the children of having a meaningful relationship with both children’s parents, and under section 60CC(2)(b), the need to protect the children from: physical or psychological harm and from being subjected to or exposed to abuse, neglect or family violence. The children have reported to the Family Consultant and the ICL that they both wish to spend time and have a meaningful relationship with both the father and mother. The father’s proposal that they spend nine nights with him and five nights with the mother does provide for the maintenance of a meaningful relationship with both parents. The mother’s initial proposal that the children spend no time with the father does not.
The mother's changed position to suggest alternative weekends to be spent in the father's care was grudging and it is apparent that the mother does not wish the children to spend any time with the father.
Section 60CC (2)(b)
In relation to risk, and in particular, alleged physical abuse, the mother alleges that the father is a risk to the children, and she alleges:
(a)that he has engaged in family violence in the presence of the children towards her;
(b)that he has repeatedly sexually abused his daughter and, at times, involved his son to the extent of having the boy act as a look-out to prevent him getting caught;
(c)is unable to properly attend to the medical needs of the children; and
(d)that he has subjected the mother to electronic stalking as a form of family violence.
As was noted above, the mother filed a Notice of Child Abuse, Family Violence or Risk Assessment in late 2022, alleging, inter alia, sexual abuse of the daughter by the father. Those allegations are detailed in the Magellan Report from the Department of Families, Fairness and Housing (“DFFH”) of 3 February 2023, which is Exhibit A1, and in the response to a request for a Section 69ZW Report dated 2 October 2023, and in the Magellan Family Report of Mr M dated 8 September 2023.
The report of Mr M is comprehensive and includes extracts from the material that was then available to him from the reports from the DFFH, the allegations that had been raised by the mother and the responses to that by the department. The report notes that DFFH involvement commenced in early 2020, with Ms Hester reporting family violence and controlling behaviours by the father dating back to 2018. That report was closed at intake after follow-up with Ms Hester who reported that the father's behaviour had improved.
There was a second report on 29 October 2021 relating to previous incidents of family violence and the third report which made allegations of the father sexually assaulting his daughter from the age of two to five years, and that abuse included making her watch pornography and touching her. That report was referred to SOCIT without the daughter making disclosures. The report from Mr M sets out that the father was interviewed and denied the allegations. Mr M sets out that, up to the time of him preparing the Family Report, there were seven reports of sexual abuse on the part of the father in relation to his daughter made by the mother.
The Family Report also summarises the DFFH Magellan Report, which is dated 3 February 2022, noting that the daughter never made disclosures to DFFH without the mother being present, between 2021 and 2022, and that the daughter appeared reluctant and had attempted to escape from the interactions with officers of the DFFH. The allegations are comprehensively summarised, and it is noted that those allegations have been investigated and no action has been taken against the father. It is noted that the DFFH substantiated harm relating to the children suffering from emotional and psychological harm, which appeared to relate to both parents’ engagement in conflict. The sexual abuse concerns were noted as being under investigation, and DFFH was seeking further consultation with Dr H. DFFH advised that the children’s spend time with Mr Tamela be supervised, pending consultation with Dr H.
The reports have been investigated by the Department and by SOCIT. No charges have been proceeded with against the father. He has denied all allegations. The Family Report made the following comments about the reports of sexual abuse at [89] – [93] of the report:
89.The allegations of sexual abuse are also of great concern, and continue to be a significant factor with [Y] making ongoing disclosures of sexual abuse. It is notable that the initial disclosures of abuse from [late] 2021 reportedly came in the context of [Ms Hester] and [Y] watching an age-inappropriate documentary including the subject of sexual abuse […]. The DFFH Magellan report 3 February 2023, further raised concerning details as to the context of [Y] making disclosures, including [Ms Hester] asking leading questions potentially prompting the disclosures in [late] 2021 and again in [early] 2022. [Y] was also interviewed by SOCIT and DFFH on a number of occasions and did not disclose the sexual abuse. A DFFH report from August 2022, included [Y] reportedly sitting on [Ms Hester’s] lap with her directly asked if [Mr Tamela] tickled her on her private parts, with [Y] replying “yes”
90.Further reports from between April and June 2023 occurred subsequent to the DFFH Magellan Report. This included a report from mid-2023, whereby [Ms Hester] took [Y] to [Q Hospital], where no concerns were identified during an external genitalia examination. SOCIT again interviewed [Y] with no further action taken. [Y’s] most recent disclosure of past abuse occurred during this assessment, whereby she disclosed being touched by [Mr Tamela] when she was around 3 or 4 years old in the crutch area. A child’s ability to remember events from such distant periods is possible, however, their reliability is often compromised, particularly in the context of the described leading questions and suggestion.
91.[Y’s] presentation during interview was also unusual and conflictual, such as her stating she did not want to be left alone by [Mr Tamela], because it made her afraid and then later stating she did not feel safe with her father. The disclosures of past abuse appeared prompted by the use of the term “safe” in a query with [Y] appearing to recognise this as a cue to disclose the allegation of past abuse. In addition, [Y’s] verbal report did not align with her presentation during the observation where she appeared at ease and enthusiastic during interactions with [Mr Tamela]. The discrepancy also presented in the DFFH Magellan Report where notes were made of [Y] disclosing to teach staff being tickled on her private parts by her father, whilst on other occasions at school requesting her father for comfort. The Child Impact Report completed by [Dr D] also made similar observations of a conflict between the [Ms Hester] and children’s narratives in interview and their interactions with their father observed. [Dr D] made direct reference to her concerns that the children’s presentation was the result of exposure to [Ms Hester’s] negative perspectives of [Mr Tamela].
92.In conclusion, whilst the Court needs to reach the final conclusion regarding the allegations of family violence and sexual abuse. There is significant concern that [Ms Hester] is subjecting the children to her unfounded beliefs about family violence and the presence of sexual abuse. This includes [Y] and [X] being subjected to repeated forensic interviews and more recently a physical examination of [Y’s] private parts at hospital. The impact of such would impact [Y’s] own perceptions of reality and with the evident possibility that the disclosures are the result of persisting suggestion by [Ms Hester] over an extended period. The result of which, would be to greatly impact [Y’s] sense of safety and comfort, particularly in relation to her relationship with her father. It would also have implications for her broader sense of stability and emotional wellbeing. Whilst it is difficult to directly associate day to day disruptions such as [Y’s] fearfulness of attending the bathroom and toileting, it would be expected that intense anxieties would manifest in a variety of contexts.
93.Whereby, [Ms Hester] problematic behaviour was to persist in line with the current trajectory, there is serious concern regarding the cumulative harms to the children, including the development of intense fear of [Mr Tamela] and progressive resistance to spend time. Whereby, the Court reached a conclusion that the above pattern presents a risk to the children, the amount of spend time becomes a relevant factor, more spend time with [Ms Hester] would reinforce the negative impacts, whereas the more time with [Mr Tamela] would serve as a protective factor, reinforcing the relationship as safe and reducing the negative impacts. Whereby, the pattern continued unaddressed or escalated, the Court may need to consider more drastically altering the spend time or possibly limiting spend time to a supervised environment until the risk can be adequately addressed.
Dr D, Forensic Psychologist, filed a single expert report and was asked to address:
(a)the father's allegations of the mother alienating the children from the father; and
(b)the mother's allegations of family violence.
and she addressed this at [68] of her report in relation to the father.
In her report Dr D dated 7 September 2022 made the following remarks in relation to the father at [67] – [69]:
67.Both parents presented as capable of looking after [X] and [Y’s] basic needs. [X] and [Y] were observed to have a close relationship with both parents. There was no evidence of the children not coping in either parents’ care or that the parents presented with a significant risk profile. Clinical evaluation suggested that [Ms Hester] was contributing to a pattern of exclusion between the children and their father driven by unfounded paranoid ideation. Thus, increased unsupervised time between the children and their father presented as appropriate.
68 While it is beyond the remit of the assessment to determine the veracity of family violence allegations, there was insufficient information to support [Ms Hester’s] narrative of physical aggression, financial control, or that [Mr Tamela] was accessing her online accounts. Since separation, [Mr Tamela] had engaged in group and individually based therapy and demonstrated insight into how he had contributed to communication difficulties in the relationship. Further, there was no information to suggest that he had breached the intervention order.
69 [Ms Hester] presented with personality problems related to paranoia and suspiciousness, which if founded are likely to be driving the family court conflict. [Ms Hester] did not support the relationship between [Mr Tamela] and the children, recognise how she impacted on the dynamic, or be able to effectively co-parent. It seemed likely that as the children’s time with [Mr Tamela] increased, she would seek out information from the children or express paranoid ideation to the children or others to support the withdrawal of contact. A further mental health assessment of [Ms Hester] is recommended to ascertain the extent of her emotional and personality vulnerabilities and how they impact on parenting and co-parenting.
The mother and the father each saw Dr H, who is a clinical and forensic psychiatrist, who provided a report on each of them, which reports were produced under an affidavit filed on 24 November 2022. That report set out conclusions in relation to the father at [82], [85] and [88] and which provided that, following a relationship of 11 years, the parties separated at the mother's instigation:
82.Psychological evaluation revealed [the father] at low parental risk for abuse or neglect of the children. He works full-time and is studying in addition. He has sound family support. There is no history of psychological difficulties although he is continuing some psychological support, which began following the separation.
…
85.[The father] presents as a parent who could readily assume full or majority care of the children if that was considered appropriate via the Court, and is likely to support the relationship between the children and their mother in full, and would have the children’s best interests firmly as the centre of his focus.
…
88.There are significant concerns associated with the mother’s support of the relationships between the children and the father, particularly taking into account the allegations over the last 12 months.
The mother sought a refuge and took out an intervention order against the father. Subsequently, in early 2022, there were allegations that the mother made of family violence, financial control and then, subsequently, allegations of the child, Y, disclosing sexual impropriety by the father.
The matters of sexual abuse have been addressed by Child Protection and the father has not been interviewed by SOCIT. A Child Impact Report undertaken in August 2022, with the recommendations of regular time between the father and the children, and interim orders were put in place in September 2022. Five nights have been occurring between the father and the children in each fortnight without apparent difficulties. The psychological evaluation raised concern regarding the mother's psychological functioning, with evidence of personality difficulties, and a personality disorder.
Additionally, the mother presented with defensiveness and positive distortion regarding her own presentation. Parental risk was estimated at low to moderate. The primary risk factors appear to be related to the mother's psychological functioning, with that psychological functioning appearing to be difficulties associated with her support of the children's relationship with the father, particularly taking into account the historical issues over the last 12 months. Psychometric evaluation supported the clinical findings. Although the day-to-day functioning of the mother does not appear problematic, her approach to the co-parenting issues presents a significant risk with such factors identified in this report, and it is likely that co-parenting will prove problematic due to further allegations against the father.
I have regard to the DFFH reports, the expert reports of Dr D and Dr H, the evidence of the father, and I also take into account the affidavits which were filed by the mother in 2022. I also have regard to the opinions expressed in the Family Report of Mr M at [91], which expressed his opinion in relation to the presentation of the daughter and the way she was reporting the sexual abuse matters:
91.[Y’s] presentation during interview was also unusual and conflictual, such as her stating she did not want to be left alone by [Mr Tamela], because it made her afraid and then later stating she did not feel safe with her father. The disclosures of past abuse appeared prompted by the use of the term “safe” in a query with [Y] appearing to recognise this as a cue to disclose the allegation of past abuse. In addition, [Y’s] verbal report did not align with her presentation during the observation where she appeared at ease and enthusiastic during interactions with [Mr Tamela]. The discrepancy also presented in the DFFH Magellan Report where notes were made of [Y] disclosing to teach [sic] staff being tickled on her private parts by her father, whilst on other occasions at school requesting her father for comfort. The Child Impact Report completed by [Dr D] also made similar observations of a conflict between the [sic] [Ms Hester] and children’s narratives in interview and their interactions with their father observed. [Dr D] made direct reference to her concerns that the children’s presentation was the result of exposure to [Ms Hester’s] negative perspectives of [Mr Tamela].
Having regard to the evidence before me, I do not believe that there is a risk to the children in the care of the father, and I find that it has not been established to any standard that the father has sexually abused his daughter or is at risk of doing so.
As to the balance of the allegations of family violence, I accept the father's description of events which occurred on 29 October 2021, being the date of separation, when the father was said by the mother to be engaging in threatening behaviour with a knife. I accept the father's account of that day as set out in [21] and [31] of his trial affidavit.
There was a blow up on that day and I accept the analysis which has been put forward by Mr M in the Family Report that this was an example of an isolated incident where matters came to a head at the point of separation, and it is not evidence of ongoing or sustained family violence.
Evidence does not support a finding that the father has hacked the mother's technology or caused anyone else to do so. For those reasons, I do not find that there is a risk of physical abuse to the children at the hands of the father.
Section 60CC(2)(b)
Turning to section 60CC(2)(b), allegations of serious psychological harm, the Act requires the need to protect the children from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence. For that purpose, abuse is defined to include the causation of serious psychological harm to the child, however so that may occur, and regardless of whether or not it is intentional. See section 4(1) of the Act.
There is a risk that the mother will continue to subject the children to her negative views of the father, and I take into account the opinion expressed by the Family Report Writer at [92] - [93] of his report:
92.In conclusion, whilst the Court needs to reach the final conclusion regarding the allegations of family violence and sexual abuse. There is significant concern that [Ms Hester] is subjecting the children to her unfounded beliefs about family violence and the presence of sexual abuse. This includes [Y] and [X] being subjected to repeated forensic interviews and more recently a physical examination of [Y’s] private parts at hospital. The impact of such would impact [Y’s] own perceptions of reality and with the evident possibility that the disclosures are the result of persisting suggestion by [Ms Hester] over an extended period. The result of which, would be to greatly impact [Y’s] sense of safety and comfort, particularly in relation to her relationship with her father. It would also have implications for her broader sense of stability and emotional wellbeing. Whilst it is difficult to directly associate day to day disruptions such as [Y’s] fearfulness of attending the bathroom and toileting, it would be expected that intense anxieties would manifest in a variety of contexts.
93.Whereby, [Ms Hester] problematic behaviour was to persist in line with the current trajectory, there is serious concern regarding the cumulative harms to the children, including the development of intense fear of [Mr Tamela] and progressive resistance to spend time. Whereby, the Court reached a conclusion that the above pattern presents a risk to the children, the amount of spend time becomes a relevant factor, more spend time with [Ms Hester] would reinforce the negative impacts, whereas the more time with [Mr Tamela] would serve as a protective factor, reinforcing the relationship as safe and reducing the negative impacts. Whereby, the pattern continued unaddressed or escalated, the Court may need to consider more drastically altering the spend time or possibly limiting spend time to a supervised environment until the risk can be adequately addressed.
It is a matter of concern that the mother has continued to make reports to DFFH in early 2023, when the children were in the shared care arrangement. There is an allegation that the father was sexually abusing the daughter and that, as a result, she had taken the daughter to be medically examined at the Q Hospital. In early 2023, SOCIT investigated the matter and there was no further action taken. The mother also reported to DFFH that she had suspended the father's time with the children (which was not the case) and there has been a further report of sexual abuse of the daughter by the father a short time later.
There are also allegations that the father had broken into the mother's house, moved objects and stolen the mother's login details. The mother has not produced any evidence in relation to those matters, whether it be in relation to the abuse occurring in 2023 or that the father broke into the residence. Curiously, notwithstanding the allegations that she made in relation to sexual abuse, the mother advised DFFH on 21 June 2023 that the shared parenting arrangement was working well and clarified that no contact was occurring between her and the father.
It is also curious that, notwithstanding that she holds these views in relation to the father, she has not placed any trial affidavit before the Court, or updated affidavit evidence before the Court, in relation to those matters. I note that there is no reason why she is unable to do that. She is tertiary educated and has a post-graduate qualification and is as an educator, so it is well within her capacity to produce evidence if she wished to seriously raise those matters. There is a continuing concern that the mother will subject the children to ongoing psychological abuse, in particular the daughter, by subjecting her to medical examinations and influencing the children against their father.
The allegations that are being raised are of the most serious kind that can be raised against the father and there is no doubt that if the mother continues to make these allegations and involve the children in the allegations by taking them to medical practitioners, that is likely to cause significant psychological damage. Whilst I am mindful of the risk to the children posed by the mother's conduct and her attitude towards the father, I will make the orders that still have the children living with her for five nights a fortnight. The children plainly love her and are attached to her. The extended block of time with the father will provide some safeguards for the children. The trajectory of this matter will change if the mother continues to make the allegations, and that is a matter that is raised and foreshadowed in the Family Report.
BEST INTERESTS – ADDITIONAL CONSIDERATIONS
Section 60CC(3)(a)
This section pertains to any views expressed by the children and any factors, such as the children’s maturity or level of understanding, that the Court thinks are relevant to the weight it should give to the children’s views. According to the ICL, who met with the children on 1 November 2023, the children expressed a view that they would like to spend more time with the mother due to her having greater access to devices. I do not place any weight on those views. Neither child expressed a view that they had any fear of the father whilst in that parent’s care.
The daughter has stated to the Report Writer, and recorded at [75] of the report, that she did not feel safe in the father’s house and that he had touched her private parts when she was 3 or 4 years of age. I refer to the Report Writer’s response to that at [91] of his report, which I have dealt with. Because of my findings that no sexual abuse has occurred, and that any fear of the father is a result of the mother’s conduct, I do not place any weight on the views expressed by the daughter. The daughter is now 7 years old, and it is well-known that the views of young children are liable to be influenced by adults who care for them: Bondelmonte & Bondelmonte [2017] 259 CLR 662 at 36 to 41, and RCB & The Honourable Justice Forrest [2012] 247 CLR 304 at [52].
Section 60CC(3)(b)
In relation to the nature of the relationship with each of the children’s parents, clearly, there is a close relationship between the children and each of the parents, and that relationship will be maintained by the orders that are proposed by the father and supported by the ICL. Each parent has been part of the children’s lives for all of their lives, save for the period when the father was separated from his children.
Section 60CC(3)(c)
There is no evidence before the Court that neither parent has failed to take the opportunity to spend time with the children or make decisions in relation to the children. It seems that things were unremarkable until the separation in October 2021. The matter has become problematic since that time, but, notwithstanding that, both parents have spent time, communicated with the children and involved themselves in decisions about the children.
Section 60CC(3)(ca)
There is no evidence before the Court that either parent has failed in their obligations to maintain the children.
Section 60CC(3)(d)
In relation to the likely effect of any changes in the children's circumstances, including the likely effect on the child of any separation from either parent, these orders will involve some change in the children’s circumstances in that the children will be living five nights with the mother and nine nights with the father, and I do not regard those changes as being significant in terms of the impact on the children, save that it provides a longer block of time with the father, and perhaps less opportunity for the mother to negatively impact the health of the children if she is minded to do so.
Section 60CC(3)(e)
There is no practical difficulty with the children spending time with either of the parents.
Section 60CC(3)(f)
Section 60CC(3)(f) goes to the capacity of each of the parents to provide for the needs of the children, including emotional and intellectual needs. Both parents are educated people who are, apparently, able to attend to the needs of the children. Unfortunately, the mother is, in the view of Dr H and the view of the Court, experiencing poor mental health which is largely unaddressed, and that is impacting on her capacity to meet the needs of the children emotionally. Unless she takes some significant steps in relation to that, whether it is consultation with a psychiatrist and, perhaps, with the intervention of medication, things, unfortunately, are likely to continue.
The mother says that she is seeing a psychologist, but there was no evidence before the Court about the regularity of attendance and the matters being addressed. There is no evidence that she is seeing the psychologist, who was the subject of orders of the Court, who has a specialist interest in the type of issues that arise with the mother.
Section 60CC(3)(g)
In relation to the maturity, sex, lifestyle and background, including lifestyle, culture and traditions of the children’s parents, there is nothing particularly noteworthy about this matter involving those issues.
Section 60CC(3)(h)
The children are neither Aboriginal or Torres Strait Islanders.
Section 60CC(3)(i)
In relation to the attitude to the children and to the responsibilities of parenthood demonstrated by each of the children’s parents, to some extent, I have already canvassed those matters. There is no issue that the children are not properly looked after, fed, taken to school and the like. The difficulty is that part of the responsibility of parenthood is to support the other parent, and that is certainly not being done in this case by the mother for the reasons that have been discussed.
Section 60CC(3)(j)
Issues of family violence have been addressed.
Section 60CC(3)(k)
There was a Family Violence Order, noted in the Family Report at [8]:
8.A Final IVO by consent without admissions was granted [in late] 2021, which was later amended to include the children as affected family members. [The mother] reported disclosures made by [the daughter] [in] [sic] [late] 2021 to police that detailed [the father] [Mr Tamela] having purportedly perpetrated sexual abuse.
This Family Violence Order expired on 5 November 2022.
Section 60CC(3)(l)
As to whether it would be preferable to make the order that is least likely to lead to the institution of further proceedings in relation to the children, I have made the orders in relation to parental responsibility and for the spend time arrangements with those considerations in mind.
SPENDING TIME WITH
In relation to the amount of time spent, the time that I am ordering is directly in line with the recommendations of the Family Report which are cogent and comprehensive. In particular, I refer to the matters set out in [98] – [100] of the Family Report.
OTHER MATTERS
I will make orders in the terms recommended by the Family Report Writer as recorded at 21 of the draft orders which were provided to the Court, that the mother shall not expose the children to any further forensic or medical examinations in relation to any allegations of child abuse, unless she has first reported such allegations to the Department of Families, Fairness and Housing, and followed their professional direction and the mother shall provide written evidence of such direction to the father and the Independent Children's Lawyer within seven days of receiving it.
I make that order. It is a protective order, and it is recommended by the Family Report Writer, and I think for very good reason that the ongoing subjection of the daughter to forensic or medical examinations at the behest of the mother without consultation with some other professional intervening is likely to cause harm to the child.
For those reasons, I will make the orders that have been proposed by the father and the Independent Children's Lawyer.
COSTS
The usual position is that each party bear their own costs. There are exceptions to that if it can be demonstrated, in particular, that somebody has failed to engage with the litigation, failed to follow orders or has been wholly unsuccessful in the litigation.
It is appropriate that there be an order for costs in the sum of $15,000. The costs sought are in relation to the costs directly related to the preparation for trial by the instructing solicitor and for the counsel’s fees of both the preparation for trial and the appearance today. Those fees are reasonable when taking into account the scale of costs for that work. There have been a series of Calderbank offers made on 11 May 2023, 23 May 2023, 27 June 2023, 11 July 2023 and 28 September 2023. I have calculated costs on a party/party basis.
I certify that the preceding seventy-five (75) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice McNab. Associate:
Dated: 6 December 2023
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