Tanton & Tanton
[2023] FedCFamC1F 343
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Tanton & Tanton [2023] FedCFamC1F 343
File number(s): SYC 8004 of 2021 Judgment of: CHRISTIE J Date of judgment: 5 May 2023 Catchwords: FAMILY LAW – INTERIM PARENTING – Where final parenting orders were made by consent – Where the father re opened proceedings – Where the father seeks interim parenting orders Legislation: Family Law Act 1975 (Cth) Part VII, ss 60CA, 60CC, 61DA, 69ZW, 91B Cases cited: Goode v Goode (2006) FLC 93-286
Banks & Banks (2015) FLC 93-637
Isles and Nelissen (2022) FLC 94-092; [2022] FedCFamC1A 97
Klein & Klein (2010) FamCAFC 150
SS & AH [2010] FamCAFC
Division: Division 1 First Instance Number of paragraphs: 170 Date of hearing: 26 April 2023 Place: Sydney Counsel for the Applicant: Ms Clifford Solicitor for the Applicant: Pigdon Norgate Family Lawyers Solicitor for the Respondent: Ms Duckham, Duckham Lawyers Counsel for the Independent Children's Lawyer: Ms Dalrymple Solicitor for the Independent Children's Lawyer: Farah Lawyers, Solicitors & Barristers ORDERS
SYC 8004 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR TANTON
Applicant
AND: MS TANTON
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
CHRISTIE J
DATE OF ORDER:
5 May 2023
THE COURT ORDERS THAT:
1.The children Z (born 2015), Y (born 20 December 2011) and X (born 2009) (“the children”) spend time with the father on the first Wednesday after family therapy has commenced from after school until 7.30 pm and each Wednesday thereafter provided that:
(a)The father’s time with the children shall take place in the presence of another adult known to the children;
(b)The person who will be present for the father’s time files an undertaking with the Court in which he or she undertakes to be present during all periods of time the children spend with the father pursuant to these orders; and
(c)The father returns the children to the mother’s home at the conclusion of this period.
2.The children are to attend on B Counsellors for the purpose of counselling.
3.Within 14 days of the making of the orders, the mother shall:
(a)Contact B Counsellors to arrange initial consultation;
(b)Ensure that the children attend on the recommended therapist and such other family therapist as agreed between the parents, in writing or recommended by B Counsellors;
(c)Attend upon all appointments as advised by the therapist; and
(d)Ensure the children’s attendance at appointments as required by the therapist.
4.The mother cause W (born 2007) to continue attending:
(a)Upon Mr C at D Therapists;
(b)Any other therapist as recommended by Mr C for as long as Mr C determines appropriate; and
(c)At appointments as scheduled by Mr C or any other recommended therapist.
5.Pursuant to Part 7.1 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) the parties engage a single expert witness to undertake a full psychiatric assessment of the mother and prepare a written report.
6.For the purposes of Order 5:
(a)Within seven days of the date of these orders the mother nominate one of the following psychiatrists and notify the father of her nomination:
(i)Dr E;
(ii)Dr F;
(iii)Dr G;
(b)Within seven days of the date of the mother’s compliance with Order 6(a) above, the father provide the mother a draft joint letter of instruction to the nominated single expert;
(c)Within seven days of the father’s compliance with Order 6(b) above, the mother respond to the father’s draft joint letter of instruction and the father forward the agreed joint letter of instruction to the single expert;
(d)The father pay the costs of the report; and
(e)In the event that the mother does not, as is required by Order 6(a), select a psychiatrist, the father shall select that psychiatrist who is first able to produce a report.
7.The parties do all things necessary to facilitate the preparation of the report referred to in Order 6 above including:
(a)Attending on the single expert as required by the single expert; and
(b)Providing a copy of the single expert family report of Ms H dated 17 October 2022 to the single expert psychiatrist.
8.The parties have leave to approach the Court on seven days notice with respect to the implementation of Orders 5, 6 and 7.
9.Within 14 days of the date of these orders the father do all things necessary to enrol in “Tuning into Teens” or equivalent. Thereafter the father do all things necessary to complete the course and provide to the mother’s solicitor and the independent children’s lawyer confirmation of completion of such program.
10.Within 14 days of being notified by the independent children’s lawyer of a program which is accepting enrolments, the father is to enrol in a face-to-face anger management course of no less than 12 weeks duration. Thereafter, the father is to do all things necessary to complete the program and to provide to the mother’s solicitor and the independent children’s lawyer confirmation of completion of that program.
11.Within 14 days of the date of these orders the father will take all necessary steps to enrol in the Taking Responsibility Men’s Behaviour Change Program through J Service or such other program obtained from the Men’s Behaviour Change Network, and proceed to complete that course in a timely fashion. Upon completion of the program, the father is to provide to the mother’s solicitor and the independent children’s lawyer confirmation of completion of such program.
12.By 4.00 pm on 2 June 2023 the applicant file and serve:
(a)Any Amended Initiating Application setting out with particularity the precise final orders sought;
(b)A single consolidated trial affidavit; and
(c)Any witness affidavits upon which he wishes to rely.
13.By 4.00 pm on 16 June 2023, the respondent file and serve:
(a)Any Amended Response to Initiating Application setting out with particularity the precise final orders sought;
(b)A single consolidated trial affidavit; and
(c)Any witness affidavits upon which she wishes to rely.
14.Any brief affidavit in reply is to be filed and served by the applicant no later than 4.00 pm on 23 June 2023.
15.On or before 30 June 2023 both parties and the independent children’s lawyer are to file and serve a Case Outline Document in the approved form which shall not, without leave, exceed five pages in respect of parenting issues and shall include:
(a)a list of the material relied upon and a brief chronology listing significant events that are relevant to the issues to be determined by the Court;
(b)the issue(s) to be determined in the proceedings;
(c)the parties’ contentions as to the findings of fact required for those issues to be determined; and
(d)bullet point summary of contentions as to section 60CC factors relied upon to satisfy the Court that it is in the best interests of the children to make the orders sought.
16.The independent children’s lawyer be granted leave to provide a copy of the Single Expert Family Report of Ms H dated 17 October 2022 to:
(a)the father’s treating therapist at K Psychologists; and
(b)the single expert psychiatrist nominated pursuant to Order 6(a) above.
17.The matter is expedited and if final hearing dates become available before the week commencing 13 November 2023, the parties will be notified and the matter relisted on those available dates.
18.A copy of the Single Expert Family Report of Ms H dated 17 October 2022 is released to the mother on the proviso that she retains it in her possession and does not show it to any other person except for the purpose of obtaining legal advice or therapeutic assistance.
THE COURT NOTES THAT:
A.Pursuant to 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 Annexure “A” attached hereto and these particulars are included in these orders.
B.Orders 2, 3, 5, 7, 8, 9, 10, 11 and 16 are made by consent.
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 pseudonym Tanton & Tanton has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX-TEMPORE REASONS FOR JUDGMENT
CHRISTIE J:
This matter came before the Court for interim hearing for orders relating to the children W (born 2007), Y (born 2011), Z (born 2015) and X (born 2009) (“the children”).
The Application in a Proceeding that was before the Court was filed by the father, Mr Tanton, on 23 December 2022 and amended 14 April 2023. In that application the father seeks orders for the children to live with him and have no contact with the mother for six months, followed by supervised time.
The mother, Ms Tanton, did not file a Response to the father’s interim application. She did file a case outline from which was plain, as it was from the submissions of her legal representative, that she opposed the orders the father sought for the children to live with him.
Both parents allege that the children are at risk of harm in the care of the other parent.
At the hearing, the father relied on the following material:
(a)An Outline of Case Document filed 24 April 2023;
(b)An Amended Application in a Proceeding filed 14 April 2023;
(c)Affidavits of Mr Tanton filed 23 December 2022 and 14 April 2023;
(d)An affidavit of Ms L filed 17 April 2023; and
(e)A Notice of Child Abuse, Family Violence or Risk filed 1 November 2021.
The father also relied on a tender bundle which was marked as exhibit 1 in the proceedings.
At the hearing, the mother relied on the following material:
(a)An Outline of Case Document (which included a Minute of Order) filed 26 April 2023; and
(b)An affidavit of Ms Tanton filed 26 April 2023.
The mother was legally represented at the hearing by her solicitor who had recently received instructions.
The children were represented by an independent children’s lawyer who relied on the following:
(a)An Outline of Case Document filed 24 April 2023; and
(b)The Single Expert Family Report of Ms H dated 17 October 2022.
After hearing the matter and reserving judgment, I relisted the matter on my own motion to hear further submissions in respect of an alternate parenting proposal which had not been canvassed by either of the parties or the independent children’s lawyer and to raise with the parties what, if any, submissions they wished to make about the material contained in the documents returned pursuant to an order I had made under s 69ZW of the Family Law Act 1975 (Cth) (“The Act”). The parties accepted that the material returned under s 69ZW was appropriately before the Court and I intend to have regard to it in these reasons.
When the matter was relisted, the solicitor who appeared on behalf of the mother was instructed to raise with the Court the fact that an unsworn affidavit had been circulated as amongst the parties and her client considered it to be procedurally unfair for the matter to be determined without the opportunity of her filing that evidence.
The mother had the opportunity to file, and did file, an affidavit. No formal application was made to reopen the mother’s evidence, although I indicated that I would treat the mother’s application as though it were an oral application to reopen or for an adjournment for the purpose of putting on further material.
I also raised with the parties whether or not they were in a position to take final hearing dates in this matter if I were able to allocate five days in the week commencing 8 May 2023. As the mother had not yet received legal aid funding for the final hearing, the hearing can not go ahead on those dates.
BACKGROUND
The parents married in 2005 and separated on 1 October 2016. They were divorced in mid‑2018.
The father commenced parenting proceedings in January 2019. The proceedings resolved by consent and orders were made for the parents to have equal shared parental responsibility and to live with the mother and spend time with the father five nights per fortnight.
In mid-2020 an incident occurred between the father and W which resulted in the father being charged and an interim Apprehended Domestic Violence Order being issued for the protection of W.
In November 2021 the father filed an Initiating Application seeking to vary the consent orders.
On 14 December 2021 orders were made for the appointment of a single expert. On 18 May 2022 that order was discharged and consent orders were made appointing Ms H, Child and Family Consultant, as the single expert.
On 22 February 2022 the matter came before a Senior Judicial Registrar for interim hearing. That hearing resulted in interim orders being made that suspended the father’s time with the children. Orders for the appointment of an independent children’s lawyer were also made.
On 18 July 2022 the parents and children attended interviews with the single expert.
On 17 October 2022, Ms H prepared the Single Expert Family Report which was released to the lawyers representing the parties and the independent children’s lawyer on 25 October 2022.
Following release of Ms H’s report the father filed the application before the Court.
THE LAW
Interim parenting orders are governed by Part VII of the Act. In deciding whether to make a parenting order in relation to children, the Court must regard the best interests of the children as the paramount consideration: s 60CA of the Act.
Section 60CC(2) of the Act states that in determining what is in the children’s best interests, the primary considerations are:
(a)the benefit of the children of having a meaningful relationship with both of the children’s parents; and
(b)the need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In applying those considerations, the Court must give greater weight to 60CC(2)(b), as is required by s 60CC(2A) of the Act.
When making a parenting order, the Court applies the presumption that it is in the best interests of the children for the parents to have equal shared parental responsibility: s 61DA of the Act. Parental responsibility does not arise in the circumstances of this case as neither party sought an order.
These are interim proceedings. The Full Court of the Family Court in Goode v Goode (2006) FLC 93-286 under the heading ‘how should interim proceedings be conducted?’ remains the methodology to be applied, as follows:
82In making interim decisions the Court will still often be faced with conflicting facts, little helpful evidence and disputes between the parents as to what constitutes the best interests of the child. However, the legislative pathway must still be followed.
In an interim case that would involve the following:
(a) identifying the competing proposals of the parties;
(b) identifying the issues in dispute in the interim hearing;
(c) identifying any agreed or uncontested relevant facts;
(d)considering the matters in section 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);
(e)deciding whether the presumption in section 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the court does not consider it appropriate to apply the presumption;
(f)if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;
(g)if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in section 60CC, or impracticable;
(h)if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in section 65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in section 60CC, or impracticable;
(i)if neither equal time nor substantial time and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result consideration of one or more of the matters in section 60CC;
(j)If the presumption is not applied or is rebutted, then making such order as it is in the best interests of the child, as a result of consideration of one or more of the matters in section 60CC; and
(k)even then the court may need to consider equal time or substantial and significant time, especially if one of the parties have sought it or, even if neither has sought it, if the court considers after affording procedural fairness to the parties it to be in the best interests of the child”.
Banks & Banks (2015) FLC 93-637 that the Full Court, discussing the Court’s approach to interim parenting cases, observed:
48.It should also be said that in parenting proceedings, as in all civil litigation, it will be the issues that are joined that will dictate which s 60CC factors are relevant. By their nature, interim parenting proceedings should be confined to those issues which, in the best interests of the child, require determination prior to a proper determination at a trial. …
49.… there is a risk that in discussing every s 60CC factor, the judicial officer may lose sight of the forest for the trees. It is also important to stress here that the requirement to “consider” each factor does not mean each must be discussed, especially where the evidence leads inexorably to a particular conclusion: SCVG & KLD (2014) FLC 93-582.
50.When it is obvious that the findings made as to some of the s 60CC factors will be determinative of the child’s best interests on an interim basis, it is a sterile and unnecessary exercise to address other factors. Moreover, it will be a sterile exercise to determine whether or not particular facts are disputed if they are relevant only to one of the non-determinative s 60CC considerations. Properly understood, we do not interpret what was said in Goode as meaning that in an interim case, each and every fact must be characterised as disputed or not; and that each s 60CC factor must be traversed where it is obvious on the facts and issues joined that there are only one or two decisive factors.
In cases where there are allegations of risk, until the evidence can be tested, it is necessary to appreciate the impact on the children if allegations are subsequently found to be accurate or indeed, inaccurate (SS & AH [2010] FamCAFC (“SS & AH”) 13 at [41] and [100]).
The Court’s approach to the assessment of risk has recently been clarified by the decision of Isles and Nelissen (2022) FLC 94-092.
CONSIDERATION
I turn then to consider application of the law to the facts in this case.
This is a case about balancing competing risks in circumstances where the evidence has yet to be tested.
The father asks the Court to find that the children are at risk in the care of their mother. The mother submits they are at risk in the care of the father.
It is necessary to understand the nature of the asserted risk to assess:
(a)Whether the Court accepts there is a risk;
(b)What is the nature of the risk?
(c)What is the magnitude of the risk?
(d)Is it unacceptable?
(e)If there is a risk can it be ameliorated?
It is necessary to understand those matters which are not the subject of dispute or otherwise established by objective evidence.
Ms H’s report is untested. It canvasses significant issues arising from subpoenaed material. Only part of that material is formally before me in this hearing.
It is important to understand though, at least in broad terms, the significant involvement of the children with police and the NSW Department of Communities and Justice (“the Department”).
In 2015, the three older children made disclosures of alleged sexual abuse perpetrated by the maternal grandfather towards each of them. The children were interviewed by the Joint Investigation and Response Team (“JIRT”) but did not make any disclosures. The parents made a joint decision at that stage to cease contact with the maternal grandfather.
In 2016 when W was nine years old he attended upon a psychiatrist and reported having experienced auditory hallucinations “for years” ([81] Single Expert Family Report).
Later in 2016 the parties separated under the one roof and in 2017 (January on the father’s report or April on the mother’s report) the parties physically assumed separate residences.
In mid-2017 the father re-partnered and at that time the parents agreed on a parenting plan. That parenting plan provided that the children live with the mother and spend time with the father each alternate week from Thursday to Tuesday.
In 2018 Y and Z made disclosures of sexual abuse perpetrated by the paternal grandfather ([6] Single Expert Family Report).
W (through a third party) made further disclosures of sexual abuse by the maternal grandfather and also disclosed that the father had hit and pushed him. W said that the father did not engage in this conduct when Ms L was present. As the history is set out in the family report at [36], the person who made the report said to the Family and Community Services (“FACS”) reported that W’s allegations about the father sounded embellished and rehearsed which he or she found to be in contrast to his disclosures of sexual abuse by the maternal grandfather.
The parties were divorced in mid-2018.
In late 2018 the father and the children travelled overseas. The father says he found the children’s behaviour challenging during this holiday and on one occasion accidently bent W’s fingers back when trying to restrain him due to his aggressive behaviour. The mother says the boys returned from the holiday reporting how much their father had hurt them and how badly both the paternal grandfather and the father spoke of the mother.
From context this would appear to be a vacation abroad taken by the children and the father. Some years after the children returned (and during a period where they had not seen or spent time with the father for some years) the mother says the children began to say that they had been abused by the father during this holiday.
In late 2018 W was diagnosed with Depression and Post Traumatic Stress Disorder (“PTSD”) and medicated at a low dose. Both W’s diagnosis at this time and the earlier experience of psychiatric intervention for auditory hallucinations were the subject of submissions in the father’s case. The concern is that W’s mental health challenges are both serious and long standing and there is no question that his conduct, particularly in the later part of 2021, posed a serious risk to the mother and the other children in the household. The objective evidence, of the mother’s own reports at the time to police, support that conclusion.
In the same month, Z repeated allegations of sexual abuse by the paternal grandfather, which were investigated but not substantiated by FACS. On 25 December 2018, the father says the mother started to prevent time occurring between the father and Y and Z such that he only saw them at sporting events. The father’s time with the older children continued to occur as per the parenting plan.
On 26 December 2018 the father says that at changeover the mother said to Y “you want to stay with mummy because you’re mad at Daddy don’t you?” The mother later took the children to the police station where they told the police they did not want to go to their father’s home ([9] Single Expert Family Report).
It is clear that the operation of the recently made final orders had broken down almost immediately and the father commenced parenting proceedings In January 2019.
In early 2019 W and the father had an argument. W told the police that the father punched him multiple times. According to the notation in the single expert report, the police records record that they noticed that the mother appeared to be telling W what to say. Witnesses to the incident said nothing physical occurred but the father was yelling in an aggressive manner at W ([59] Single Expert Family Report).
In early 2019 a FACS referral discussed in the Family Report at [85] indicated that the mother had driven the boys to locations where she believed they had been abused and the mother’s belief that the children are been sexually abused was effecting her interactions with the children. FACS notes for the next day noted in the Family Report at [84] record “the father is known to staff as agro pushy and intimidating”.
In early 2019 the mother called the police after W became aggressive and threatened to kill himself. The police took W to the hospital ([60] Single Expert Family Report).
In April 2019 the mother asked the father to take W for two to three months as she wasn’t coping with his aggressive behaviour. The father said he would happily take all four boys as he did not want them to be split up. The mother refused that request and accused the father of regularly slapping W in the face.
This agreed fact – namely the mother asking the father to care for W, the father submits, is indicative of the mother, at least as at April 2019, having no reasonable belief that he posed a risk to the children. That must be so. If the mother believed the father had abused the children or any one of them she would not have made this suggestion. Her solicitor said the mother’s proposal was only temporary in nature. That does not change the import of the offer when assessing the veracity of her allegations.
In early 2019 the JIRT substantiated that W and X had been sexually abused by the maternal grandfather and that W, X and Y had been psychologically and physically abused by him. The children received victims compensation. JIRT also substantiated that the father has psychologically and physically abused all four boys. No allegations against the paternal grandfather were substantiated.
In June 2019 W told his psychologist, Ms M, that the father had punched him in the stomach after W had punched X. The father denies this and said that he did push W with a flat palm ([102] Single Expert Family Report).
The mother raises a concern about the father’s physical altercations with W. She contends they indicate that the children would be at risk in the father’s care. I accept that the incidents, even on the father’s case, are unfortunate. However, I cannot ignore the fact that the mother has become embroiled in physical altercations with W as well, in the presence of the children. W’s difficulties pose a dilemma for both his parents and a risk for his siblings. To some extent I am comforted by the orders to which the father consented which will provide him with further education to assist him to manage the children’s behaviour when it is challenging.
On 15 November 2019 the final parenting consent orders were made in line with the July 2017 parenting plan. That is, the children were to live with the mother and spend five nights a fortnight with the father. As at 15 November 2019 it must have been the mother’s position that the children were not at unacceptable risk of harm in the father’s care. The mother says she felt that she had to resolve the proceedings in the manner that she did but, until such time as the evidence can be tested, her actions in consenting to this parenting regime are consistent with her acceptance that the children should, ideally, spend substantial and significant time with the father.
About a month after those orders were made, the Family Report records that on 17 December 2019 Z is said to have disclosed to his mother that the father had stuck his finger up his bottom. The following month, on 15 January 2020, Z is said to have disclosed to his mother that the father punches him when he is angry ([43] Single Expert Family Report).
In June 2020 the mother called the father to assist her in managing W’s behaviour. When the father attended at the mother’s home, he found an illicit substance in W’s room and a physical altercation between father and son ensued. Reports suggests that the father threatened to kill W. This incident was not reported to the police at the time. W and the father have not spent time together since.
In July 2020 W is said to have attacked the mother who called the police. When the police arrived, W told them about the June incident and was taken to the hospital for a mental health check.
On 9 July 2020 the father says he received a message from Mr O, a former N School staff member, expressing concern for the mother and the welfare of the children. At that time, W was attending that school.
On 16 July 2020, after receiving the text message, the father contacted the Department of Communities and Justice (“the Department”) Child Protection Helpline expressing concern about the mother’s mental health and the welfare of the children.
On 19 July 2020 the father says a mother from X’s school approached him expressing her concern about the mother’s mental health and W’s behaviour.
On 20 July 2020 it is reported that Z disclosed to the mother that the father has asked him to “tickle his penis”. These allegations were not substantiated by the Department ([46] Single Expert Family Report).
On 29 July 2020 the father contacted the Department again to raise his concern about the children’s welfare. He says he was told that the Department were unlikely to get involved.
A few days later the father attended at the police station in relation to the June incident. He was charged and plead guilty to common assault and an Interim Apprehended Domestic Violence Order (“ADVO”) was issued for W’s protection.
In August 2020 the father met with the Joint Child Protection Response Program (“the JCPRP”) after the mother had made a complaint against him in relation to the three younger children, following the June incident. He says they made an assessment and advised him they would close the matter and would tell the mother to refrain from making further false claims against him.
In August 2020 the mother of one of W’s friends made a report to the police that W had been threatening her son with violence and harassing her. She said she had attempted to contact the mother but the mother had been unavailable to discuss the matter ([62] Single Expert Family Report).
On 13 August 2020 (or 18 August on the father’s evidence) the mother suspended time between the father and Y and Z. X chose to keep spending time with the father ([22] Single Expert Family Report). I pause to note that it was part of the father’s case that, the allegations of abuse having been made in respect of him by the children at that time according to the mother, she took no step to ensure that X did not spend time with him at that point.
At that time, the material produced by the Department suggests that Y had disclosed that “daddy eats my penis” and “dad touches my penis”. The mother reported multiple alleged sexual assaults by the father on the children to police ([63] Single Expert Family Report).
In mid-2020 W was removed from his school and started attending P School, where he continues to attend.
In late 2020 the father says the mother notified him that W had overdosed on alcohol and an illicit substance.
On 2 November 2020 X stopped spending time with the father.
On 6 November 2020 the father called Q Service raising concerns about the welfare of the children. He also contacted the Department on both 11 and 13 November 2020.
The reasons for the father’s contact with the Department on 13 November are set out in the material from the Department to which I was taken in submissions. From context it would appear as though the father raised with the Department matters which had been the subject of communication by the mother to the father:
13/11/2020 Screen in for [W] (13) under 'Significant Risk of Neglect' with a PRF of 'Other- Health/behavioural issues of the child/young person'. The mother told the father she had taken out an AVO against [W] due to Domestic Violence against her and the children. The mother feared for her safety and the children. The mother has stated she 'can't cope with the child' when [W] has sworn, had outbursts and has threatened her. It was reported [W] passed out and was drunk and he was taken to the hospital. He had overdosed on alcohol and [an illicit substance]. This information was sent to the father by the mother. The young person is demonstrating outbursts and the mother has stated she cannot cope. A household screening for [Z] (5), [Y] (8) and [X] (11) was applied.
On a day in November 2020, in the evening, Police records state:
… About 7.00pm […] [Ms TANTON] (victim) and her son [W] (Person of Interest) have become involved in a heated argument with the victim calling police to intervene. The whole incident started with the POI teasing his younger brothers who at the time were watching television and playing video games whilst sitting on the lounge at the time. The teasing continued to a point where one of the sibling [X] and the POI have gotten into a wrestle on the lounge which resulted in the victim intervening due to the noise and swearing between both boys. [Ms TANTON] (Victim) has walked into the lounge area to break up the altercation between the two boys, at that point the POI has become abusive to the victim and thrown a glass of water from the table onto the lounge floor. The victim has then requested the POI to clean up the mess but the POI has become very abusive towards the victim. The victim has then contacted the police as the POI's behaviour has escalated. At about 8.30pm […] police arrived on scene and spoke with [MS TANTON] (victim) who stated that her son [W] (Person of Interest) was in his bedroom at the time. Police have obtained details from the victim who stated that her son's behaviour is becoming worse, even though he's seeing a psychiatrist for behaviour problems and possibly mental health related issues. The victims only concern is that police speak to her son as there is no male figure within the family household. Police had a long talk with the POI and stated that the behaviour is to stop or more steps will be undertaken by police to see that it's carried out. Police have then spoken to the victim letting the victim know that police have put the fear of god into the POI and hopefully the talk by police will make the POI realize how lucky he is to have a caring mother. A victim card was left for the victim with the officer in charge details.
(As per original)
In December 2020 the father delivered cupcakes to the children’s school and the mother alleged that the children became ill from eating the cupcakes ([65] Single Expert Family Report).
In December 2020 the father says he received a call from the Suburb R Police Station who advised him that, in addition to W, the mother had sought an ADVO against him on behalf of herself, Y, X and Z. The mother says she sought the ADVO after Z reported that the father had threatened to kill her. Police declined to take out the ADVO ([65] Single Expert Family Report).
In December 2020 the mother says Z disclosed to her that the father had sexually abused him in a number of ways. Those allegations were considered to have already been investigated and not substantiated ([47] and [48] Single Expert Family Report).
In December 2020 the mother told the police she would commit suicide if one of the children were to commit suicide and that she felt that the children were out of control. X and Z were interviewed by police on the same occasion and repeated the allegation that the father said he would kill their mother but could not provide any context ([66] Single Expert Family Report).
In December 2020 the father says he received a phone call from Suburb S Police who advised him there had been an incident at the mother’s house and she believed he was the perpetrator. The father says he was home when the incident occurred. It is unclear what the incident was.
In early 2021 there was a violent incident between W and the mother. It was plain that, to the extent that the police had provided him earlier with a warning intended to prevent this occurring in the future, this had not been successful. W is recorded to have smashed things in the mother’s home, requiring police attendance ([50] Single Expert Family Report).
In early 2021 W threatened to kill himself and was taken by police to the hospital ([67] Single Expert Family Report). A few days later it is said that Y and Z made further disclosures of sexual and physical abuse by the father ([51] and [52] Single Expert Family Report).
In early 2021 the father’s mother dropped a present at the mother’s house for Z’s birthday. The father says he was contacted by the police at the mother’s request who asked him to ask his mother not to attend at the mother’s home. The mother also alleged that the father was harassing her via email but the police were not able to discern any threat within the emails.
On 18 February 2021 material produced pursuant to an order under s 69ZW of the Act by the Department revealed that there had been a disclosure by X that his father had touched his genitals in late 2020.
In early 2021 a final ADVO issued for the protection of W which expired in early 2023.
In early 2021 the father says he received a call from the Department about allegations the mother had made about him but no further action was taken by police or the Department.
In early 2021 the mother contacted the police after she and the three younger children saw the paternal grandfather in Suburb T. At that time Z informed the mother that the father had taken him to see the paternal grandfather in mid-2020. The paternal grandfather lives in Suburb U ([69] Single Expert Family Report).
In early 2021 V Hospital recorded that the mother was telling the children to make disclosures to each professional they met ([74] Single Expert Family Report).
In early 2021 the mother called the police because W was behaving aggressively towards her “because of the abuse perpetrated by the father over many years” ([70] Single Expert Family Report).
In mid-2021 the mother says the father sent the three younger boys a parcel with a note asking them to call him. W destroyed the note. The mother told the police that FACS advised her not to let the father contact the children ([71] Single Expert Family Report).
In mid-2021 the father sent sports memorabilia to the three younger children.
In mid-2021 the father says he received a call from Suburb S Police about a possible breach of the ADVO. He was told that the mother had contacted the police saying there were no parenting orders in place and that the father was not allowed to contact the children. The father provided police with court orders to the contrary.
In late 2021 W arrived home at his mother’s house drunk and attempted to strangle Z. He threw a toy at the mother which caused bleeding. W was charged with assault ([56] Single Expert Family Report).
The Police record reads:
[In late] 2021 victim 1 picked up the Young Person from a friend's house and brought him home. She believed that he had been consuming intoxicating liquor while with his friends. She had then prepared him and her other children a meal. After the meal, about 8:30pm the Young Person, victim 3 and victim 4 had begun play fighting on the floor of the living room. This is normal behaviour for the Young Person and his siblings. In this instance the Young Person and victim 4 were utilising a blanket from the couch and were wrestling with it. However the Young Person became more aggressive and the situation escalated into the Young Person putting his hands around victim 4's neck and holding him to the floor while on top of him. Victim 4 has begun screaming in distress. Victim 1 has attempted to verbally stop the fight, however the Young Person has ignored her. Victim 1 has then, using the side of her closed fist, struck the Young Person twice on the thigh in an attempt to stop the Young Person, who released his hands. Victim 1 believing the incident to have de-escalated tickled the Young Person under his armpits, who then completely got off his brother and stood up. Victim 1 has knelt on the floor, thinking the incident over. The Young Person obtained a large plastic [toy] from a toybox near the door to the room. Standing approximately a metre away from victim 1, he has thrown the toy at victim 1's head. The toy impacted on the left-hand side of her head on her brow and temple, causing a minor laceration and bleeding from near her eyebrow. This has caused distress to the other victims as there was substantial bleeding. Victim 1 believed that she suffered a concussion as a result of this impact, however medical treatment was not obtained.
…
[W’s] behaviour could escalate further, and that he could cause serious injury when he has random violent episodes and loses self-control, and when playing roughly with his siblings, especially after consuming alcohol. [W's] behaviour has become worse after associating with other young persons where he's been exposed to alcohol and drugs. Fears held by Police: Same as the victim. [W] could recklessly endanger his family members when losing self-control. Mental health conditions and past trauma could also be affecting his behaviour.
In late 2021 police took W to the hospital for a mental health assessment. The mother told hospital staff that W had been sexually and physically abused by his father and that the father had broken his jaw ([79] Single Expert Family Report).
In late 2021 the mother told the Department that the father had sexually assaulted all four children despite W never having made such disclosures ([55] Single Expert Family Report).
In late 2021 W was charged with assault ([56] Single Expert Family Report).
A few days later W was placed in custody after assaulting the mother and the mother asked police not to apply for an ADVO ([56] Single Expert Family Report).
The records demonstrate a significant physical and psychological risk to the younger children from their older brother’s violence and the mother’s inability to protect them. The Department records read:
Screened in for risk of physical harm for [X] (12) [Z] (6) and [Y] (9) based on reported information that [W] (14) attempted to assault them […] The mother, [Ms Tanton] intervened and was herself assaulted by [W], which indicates that he has the potential to cause harm to his younger siblings.
…
- [In late] 2021 [W] (14yo) was placed into custody due to perpetrating DV towards his Mother; [Ms Tanton]. NSW Police have applied for an AVO with orders prohibiting [W] from residing in the home with [Ms Tanton]. [W] is no longer in custody and np alternate accommodation arrangements have been made for the c/yp. Juvenile Justice have made several attempts to contact [Ms Tanton] in order to organise alternate accommodation for [W] however they are unable to reach her. [W] does not have any other friends/family that can provide him with accommodation and he cannot resides with his Father; [Mr Tanton] given risk sexual harm concerns (noted in ASM-4530203 [late] 2021).
…
School hold concerns about the kid’s mental health as they present as significantly anxious. Worries about past concerns of sexual abuse from paternal family. JCPRP worked with the family and organised CPCS but mother didn’t engage. Similar concerns around engagement with other supports
In late 2021 a pre-sentencing report for W was prepared which concluded that he had PTSD because of the abuse by his maternal grandfather ([57] Single Expert Family Report).
It is plain that W’s behaviour between early 2021 and at least late 2021 placed the other children (and the mother) at unacceptable risk.
On 22 February 2022 orders were made suspending the father’s time with the children. It is not plain to me how much of this information was before the Court at that time. It is not plain whether the judicial officer who heard the matter at that time was provided with detail of all of the events in the mother’s household to which I was taken in submissions.
The father’s counsel said I would, as a consequence of those incidents, find that the children’s residence should change on an interim basis. I accept they are very serious and constitute risk. However I am also satisfied that the evidence establishes the situation is not as acute as it was at the conclusion of 2021 at least insofar as the objective evidence establishes a risk posed by W to his siblings. I am particularly buoyed in that view by the reports of the school about the manner in which W has settled at the new school. In addition, I was not taken to more recent events of a similar nature and I note W is obtaining help including under the orders I will make. I therefore conclude that the evidence in 2021 involving W do not persuade me to change the children’s residence at this time.
In early 2022 W was charged with multiple offences ([73] Single Expert Family Report).
On 18 and 21 July 2022 the parties and the children attended for interviews with the single expert whose report was released in October 2022.
I now need to turn to what I see as an escalation of the children being interviewed by authorities and consider the significance of events in 2022 and 2023.
On 8 December 2022 Y disclosed that in 2018 or 2019 when he was on holiday with his father abroad while he was bathing, his father pushed him into the bath tub and put a fake penis in his bum.
On 23 December 2022 the father filed an interim application seeking orders that the children live with him. That application, the subject of this judgment, was listed for determination on 26 April 2023.
On 23 March 2023 a request was made to the Department to consider intervening pursuant to s 91B of the Act.
When the matter came before the Court on 26 April 2023 there was no appearance by or on behalf of the Department. This is, in my view, unfortunate since the Court is faced with two significant competing risks – risk of sexual harm or risk of significant psychological harm. There is also a complicated issue of risk posed to the children’s siblings by W’s conduct in the mother’s household.
The Department are uniquely placed to assess the competing needs of the children and to provide referrals and services to each parent in circumstances where they are badly needed by the children. If (in due course) there is no merit in the allegations of abuse relied upon by the mother but they remain resistant to a change of residence this Court has no options without the involvement of the Department.
Section 69ZW material
On 13 March 2023 orders were made pursuant to s 69ZW of the Act directing the Department to produce documents relating to the children.
The Department produced those documents on 17 March 2023 and leave was granted for the parties, their legal representatives and the independent children’s lawyer to inspect them on 20 March 2023.
They contained details of recent allegations of physical and sexual abuse.
I have considered the recent material because it deals with interactions between the children and the Police and DCJ in the period between release of Ms H’s report and this hearing.
On 24 January 2023 the Department’s Helpline Assessment Record records the following:
About 11am [in late] 2022, [Ms Tanton] attended [Suburb S] Police Station with [Y] as he recently made a disclosure about a sexual assault that occurred [abroad]. [Y] said; "In either 2018 or 2019 on holiday 2 things happened." "I was in the bathtub and he pushed me into the water and I couldn't breath" "and he got like a fake private part", "he got a fake penis and put it in my butt" "It was [overseas]". Detectives were contacted who then spoke to [Ms Tanton]. [Ms Tanton] stated that it was a different disclosure to previous reports but she had already reported this incident to victim's services who had been working with the family over a number of years. [Ms Tanton] provided Detectives with her previous report which was made [in late 2018] via email where she recorded Y making a similar disclosure.
This email has been uploaded. Police have reviewed the history of the family and there are previous records that have been investigated by CAU […]. Police have unable to view these cases and cannot determine if this disclosure has been reported previously. Police have been informed that the POI wont have access to any of their children and they are protected by an ADVO from previous incidents. There are current family court proceeding where the order may be varied with the next court date on the 16th December 22 as previously reported.
(As per original)
In late 2022 the Department’s Helpline Assessment Record details the following:
CSO BRIEF: It was reported [Y] made a disclosure today regarding his father [Mr Tanton]. [Y] said "I was in the bathtub and he pushed me into the water and I couldn't breathe, he got a fake private part and put it in my bum". [Y] said the incident happened between 2018 and 2019. [Mr Tanton] is currently out of the family road [home?] and is living with a […] step child
REPORTED INFORMATION
Caller said that [Y] and his mother attended the police station. [Y] disclosed that in either 2018 or 2019 while on holidays [abroad] [Y] was in the bath tub and his father [Mr Tanton] pushed his head under the water and he couldn’t breathe.
[Y] also said that [Mr Tanton] got a fake private part, a fake penis, and put it in his bum. This happened [overseas].
(As per original)
In late 2022 the Department’s records detail the most recent allegations of sexual abuse made by both Z and Y about their father, the maternal grandfather and the paternal grandfather. The reports record the following:
Caller reports that [Z] and one other child have given more into in relation to the sexual abuse allegation which was reported to helpline before.
Caller is providing new info as there has been new disclosures made [in late] 2022 [Z] has disclosed that “he [the father] put my hand in vomit and diarrhoea bucket , shaved [shoved?] my head into and then threatened to lit me on fire, [Ms L] was [there] and I was on the grass’
…
[In late] 2022, [Z] stated “he ([Mr Tanton]) put my head in a vomit and diarrhoea bucket. He shoved my head in it, then threatened to light me on fire, and [Ms L] ([Mr Tanton’s] partner) was there”. [Redacted] asked “where were you?”. [Z] stated “on the grass, the pool place on [Suburb AA]. The bucket was black. Big black bucket like a cauldron. [Ms L] was there. Brothers were in the house”. [Redacted] asked “what time was this?”. [Z] stated “I don’t know, I’m not a genius”. [Redacted] asked “what happened after?”. [Z] stated “I vomited. He stuffed me in the toilet. My face. Then he shoved me in the refrigerator until I opened it”. [Redacted] asked “where was the refrigerator?”. [Z] stated “in [Ms L’s] kitchen”. [Redacted] asked “what colour is [Ms L’s] kitchen?”. [Z] stated “white and bit blackish. Then he threw me on the hard ground and dragged me under his bed”.
[In late] 2022, [Z] stated “they ganged up on me. Three of them. [Mr BB] (maternal grandfather), [Mr Tanton], and [Mr CC] (paternal grandfather). They took turns. At [Mr BB’s] house in the living room. Not cozy. White walls. Brown couches”. [Redacted] asked “what did they do?”. [Z] stated “abuse me. Every abuse in the book. Doing ‘shadyme’ ”. [Z] demonstrated by poking his buttocks and genital area.
The caller explained that [Mr BB] is the maternal grandfather and should not have any contact with the children due to prior sexual abuse against [W] and [X]. This was recognized by victim services.
[In late] 2022, [Y] disclosed that “[Mr Tanton] put a pink dildo in my butt [overseas]. It had a pin ball machine, fancy place, hot pink”. [Redacted] to [Suburb S] Police where he disclosed the following to officer “[Mr Tanton] put me under water in the bath and put his fake penis in me”. [Y] said it happened when he was [overseas] with [Mr Tanton]. The children went on holiday with [Mr Tanton] [abroad] in 2018.
[In late] 2022, [Z] tried to put plastic gloves in his mouth and rub it on his eye. [Redacted] asked [Z] to stop doing that. [Z] responded “[Mr Tanton] rubbed his dick all over my eye and put his dick in my mouth”.
[In late] 2022, [Z] stated that [Mr Tanton] “tweaked in my face”. [Z] was unable to provide any time frames of when these incidents occurred.
(As per original)
I am concerned about the frequency of the interviews of the children. I am concerned about the content of the disclosures. It goes without question that if what the children have disclosed did occur then they would be at risk in their father’s unsupervised care. The allegations that the children’s maternal grandfather, paternal grandfather and father have collectively abused the children seem, on their face, fantastical and cause me to question the likelihood that the events occurred in the manner described or at all. I am similarly sceptical of the alleged disclosure that the abuse occurred in the presence of the father’s partner.
I accept that a child’s account may contain both truthful elements and untruthful elements and cannot be discounted merely because it seems unlikely on its face.
The allegations need to be viewed in their specific context. That context includes: The Department substantiating an abuse allegation involving the maternal grandfather, the timing of the disclosures, the mother’s actions in consenting to past orders, the mother’s actions in consenting to W coming into the care of the father, the response of the Department and police to the allegations. For all of those reasons I am not satisfied that evidence establishes, at this stage, that the children have been abused by the father although I acknowledge that the evidence is untested. That is not the same as a finding that the abuse did not occur. That is not the exercise I am undertaking at this stage.
As discussed above, the mother sought that the Court have further information before making a determination of these interim proceedings. To the extent that that application was made in an informal sense, I intend to dismiss it.
The parties have final hearing dates. I do not intend to change the children’s residence at this time. I intend to make orders for expedition, preparation of the matter for hearing, therapeutic assistance for the children and I intend to order that there be time between the children and the father under conditions where the children will not be placed at risk. Given the scope of the orders and my obligation to deal with all applications expeditiously, this interim application cannot be adjourned further.
The father knew it was necessary to address whether there had been a change since the making of the earlier interim order suspending his time. The father’s application for interim relief was filed after the release of a comprehensive Single Expert Family Report which raised, in the expert’s opinion, serious concerns about the continued care of the children by their mother. Seen in that light, the father’s application, while it faces significant hurdles given the difficulties in making findings of fact at an interim stage even in a case where there is expert evidence, was an application which was properly made. That application was not listed expeditiously and the mother failed to file material in response to it within the timeframe set out in the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth). No party objected to the mother filing material effectively at the last minute and I have read and had regard to the material which she has filed. The material filed by the mother failed to squarely engage with what it was that she said posed the specific risk to the children, although it was plain from the collateral information, that it is the material contained in the tender bundle and the s 69ZW material, that the mother will be seeking a finding at the final hearing, that the father poses an unacceptable risk of sexual abuse to the children.
I have set out above, in some detail, the facts and circumstances which have been reported to the Department most recently. They are a small sample of what has been said to the police and child welfare authorities over time.
The mother says inferentially that this Court should accept that those allegations are true. Because she has not filed affidavit material which deals with the issue squarely, it is not plain whether or not she asks that I accept that what the children are said to have disclosed is literally true or whether it represents the children’s perceptions.
In contrast, counsel who appeared on behalf of the father argued that the Court should, on an interim basis, make orders placing the three younger children in the father’s care in circumstances where the children were at risk in the mother’s household. It was not suggested that the risk to the children in the mother’s household arose solely from the children’s brother, W. Although substantial emphasis was placed on W’s dysregulated behaviour and the occasions on which he had inflicted violence on the mother or one of his siblings. It is important to consider the extent of W’s difficulties to appreciate the risk said to exist in the mother’s household. Firstly, W has been using drugs and alcohol in a way which has impacted upon his functioning. Secondly, W has used violence towards his mother sufficiently serious that he has been arrested, charged and convicted. Thirdly, W has engaged in physical altercations with his siblings. Fourthly, W’s behaviour has been sufficiently difficult in the past that the mother has requested that the father care for W.
The last of these identified factors was also explored in submissions on behalf of the father. Counsel submitted that the Court would have difficulty in accepting that the mother actually believed the content of the allegations which she said had been made by the children in circumstances where she was prepared, as a solution to the difficulties in her household, to make the request of the father that he assume care of W. There is a logical difficulty in her argument that the father poses an unacceptable risk to the children but should assume the full time care of one of them.
CHILDREN’S VIEWS
It is important that I consider, to the extent that I have evidence, the children’s views.
There is no application relating to W. It is accepted he will continue to live with the mother. If I made the orders the father sought the other children would live separately form their sibling. As the father submitted that would shield them from conflict between the mother and W and from W’s own attacks on them. It would decrease their exposure to his dysregulated behaviour, alcohol and drug use. I accept these are all advantages of the proposal. However, I was told by counsel for the independent children’s lawyer that the children would be resistant to orders they live with the father as being contrary to strongly expressed views.
Given the alleged disclosures these views are perhaps unsurprising. So, what weight should be attached to them? In attaching weight I need to take into account the manner in which the children’s views have been formed.
The views, even of older children, will not necessarily be determinative if other relevant considerations weigh more heavily in the mix. Here the assessment of the risk posed to the children from the situation with their brother in the household and the repeated interviews are matters which are important to take into account.
If, as the father urges, it is ultimately found to be appropriate that the children live with him, it may be important at an interim stage to give the children the opportunity to see and spend time with the father – even modest time – while undergoing therapy – to assist the children to restore the relationship with the father.
Because of the conditions which I intend to attach, I am confident they will not be at risk.
CONCLUSIONS: FATHER’S TIME
I have weighed the evidence about risk. I am conscious that my task is, as the mother’s lawyer submitted, to “weigh probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted on or rejected” as it required by the dicta in SS & AH. I have had regard to the manner in which I ought asses risk according to the authorities. In reaching a conclusion about risk, particularly at an interim stage, it is important that I err on the side of caution. The act of testing the evidence is an important part of the judicial process.
I have had the benefit of a single expert report which, while untested, I cannot ignore. It speaks very strongly about the psychological risk in the mother’s household. Notwithstanding its conclusions I accept that it is not determinative of the issue and the Court will be in due course be assisted by cross-examination of the author (and each of the parents).
I intend to take the alternate course foreshadowed to the parties which is to reintroduce time between the children and the father in a cautious and considered fashioned and accompanied by therapy.
The children will not be at any physical risk during that time.
The continuation of therapy – for the children – informed by the narratives of both parents – will assist with the identified psychological risks.
ORDERS
Family Therapy
The parties consented to orders for family therapy and I will make same. That therapy will hopefully assist the children to manage a number of challenging circumstances in their family.
If there is any delay in commencement of family therapy I expect the matter to be relisted by the independent children’s lawyer.
The mother sought an order that W’s current treater make a determination concerning suitability of family therapy. The father sought that it commence at a named psychology firm K Psychologists. The independent children’s lawyer’s minute was the same as the mother’s.
I find that it is appropriate that there be family therapy between W and the father. I decline to make an order delegating that decision to another person. If the appropriately qualified therapist at K Psychologists forms the view that progressing family therapy between W and the father is contrary to W’s interests then it will not progress but I do not see any merit in deferring the start or delegating the decision to Mr C.
Otherwise the parties consented to orders which I will make which begin with the attendance of the children at B Counsellors and family therapy.
Both parents should be involved in this process – but B Counsellors itself will retain the absolute discretion as to the extent of any parental involvement.
Supervision
As indicated earlier, the orders which I intend to make will provide that the children spend time with the father. That time will be supervised. The time will not be professionally supervised in circumstances where the evidence before the Court does not indicate that professional supervision is necessary. The supervisor will be present in order to provide monitoring of the children’s interactions with the father, the father’s interactions with the children and to ensure that the children are not in the sole care of the father.
The supervision is designed to address the mother’s expressed concerns that the children may be at risk in the father’s care, noting her expressed concerns are, at this stage of the proceedings, inconsistent with the position which has been taken about the allegations by the child welfare authorities.
Through his counsel at the hearing the father indicated that it is likely that the supervisor would be his partner who was on affidavit in the proceedings before me. She is known to the children and, having read her affidavit, would appear to be a suitable person to undertake the role. If an undertaking is filed by the father’s partner then she is likely to undertake the supervision.
I have left open the possibility that the supervision may be undertaken by someone other than the father’s partner but should be a person known to the children, to make the circumstances in which the time takes place as natural and child friendly as is possible, in the circumstances.
I am alive, particularly as a consequence of the submissions made on behalf of the independent children’s lawyer, to the fact that the children may exhibit some resistance to spending time with the father. It is for that reason that the time is not scheduled to take place until the family therapy has commenced. It would be my hope that the question of the time can be broached by the family therapist with the children and the parents during the initial session and the family therapy can be used as a space for the support of the children while they transition to this new arrangement.
I have provided that the time ought commence from the children’s school to ensure that the parents do not need to come into contact with each other for the time to occur and that the mother is not responsible for providing the children to the father.
Single Expert Psychiatrist
I turn then to consideration of a single expert psychiatrist.
The mother agreed that an expert be appointed. She nominated two psychologists and a psychiatrist.
At [291] of Ms H’s report she said:
The longer term risks of psycho-social problems for the boys are significant, if their primary parenting is dysfunctional to the extent that it appears to be. [Ms Tanton], while positing herself as the ultimately protective parent, is currently, in the report writer’s opinion, a person causing harm. If she is unwilling or unable to see that the boys are doing what she wants them to do rather than disclosing any actual harm, she is either mentally ill – and this needs to be psychiatrically assessed – or she is self-interested to the point where she is willing to subject her children to ongoing emotional harm in order to be seen to ‘win’ the battle against [Mr Tanton].
The single expert observations make the issue squarely one which will need to be addressed at final hearing by a psychiatrist, as opposed to a psychologist.
All four psychiatrists are qualified. The father’s counsel was concerned that Dr DD’s fees may be significant and he is required by the orders to meet them without assistance from the mother. For that reason the mother should select one of the three psychiatrists the father has satisfied himself is both qualified and whose fees have been assessed by him as within his capacity to fund.
If the mother fails to select a psychiatrist within the requisite time frame the father should select the person who is able to complete the report first in time.
Adversarial expert
The mother sought appointment of an adversarial expert. In making the submissions in support of this her lawyer referred to a number of occasions in the report of the single expert where Ms H had commented on whether a particular contention was true (or not). It was submitted that this usurped the judicial function. I accept that controversial fact finding is the role of the judge.
As the Full Court observed in Klein & Klein (2010) FamCAFC 150 at [241]:
…The function of the family consultant is not that of an adjudicator. The family consultant brings to bear an entirely different expertise and experience from that of a lawyer or perhaps investigator. The family consultant may, as an expert, express an opinion on the ultimate issue; see s 80 of the Evidence Act 1995 (Cth). However, as the Full Court made clear in Hall and Hall (1979) FLC 90-713 at p 78,819: “there should never be any suggestion that the counsellor is usurping the role of the court or that the judge is abdicating his responsibilities”.
However Ms H had read a significant amount of third party material (listed in her report) and I understand her conclusions as to whether matters were accurately portrayed (or not) to be a synthesis of her assessments and her reading of third party documents. A good example was the issue of whether or not the father broke W’s jaw – the single expert said that while this had been reported by the mother it was not true. I asked the mother’s lawyer whether W’s jaw was broken by the father and somewhat incredibly she said she did not know and did not have instructions. The mother must have known. To make good on the submission it was necessary for the mother to point me to examples where the single expert had in effect determined relevant matters of fact incorrectly and it had impacted her conclusions.
The independent children’s lawyer did not support the application for the appointment of an adversarial expert and accepted that Ms H had appropriately carried out the task.
A further difficulty lay in the mother’s approach to the issue. She submitted that the adversarial expert could just meet with her. This would not see reports with the same evidentiary foundation. In essence the mother having consented to the psychiatric assessment she will (appropriately) meet with a psychiatrist but Ms H’s role is different in so far as she assesses all parties and the children in the context of the evidence as a whole.
The appointment of adversarial experts is governed by the provisions of r 7.08 of the Rules. Rule 7.08 of the Rules provides:
7.08 Appointing another expert witness
(1)If a single expert witness has been appointed to prepare a report or give evidence in relation to an issue, a party must not tender a report or adduce evidence from another expert witness on the same issue without the court’s permission.
(2)The court may allow a party to tender a report or adduce evidence from another expert witness on the same issue if it is satisfied that:
(a)there is a substantial body of opinion contrary to any opinion given by the single expert witness and the contrary opinion is or may be necessary for determining the issue; or
(b)another expert witness knows of matters, not known to the single expert witness, that may be necessary for determining the issue; or
(c)there is another special reason for adducing evidence from another expert witness.
I was not persuaded that there was any basis for appointment of an adversarial expert and I decline that application.
Expedition
I canvassed expedition with the parties.
I accept the parties need a final hearing. I have allocated dates in November. I was able to offer the parties dates commencing 8 May 2023 but the mother does not yet have a grant of legal aid. I cannot require the matter proceed on such short notice given that issue. I will however direct the parties to file their affidavit material so that the matter can be heard earlier if dates become available. Accordingly I will expedite the matter and the parties will be contacted if dates become available before November.
I will change the existing filing directions to ensure the parties are able to take a date if offered.
I certify that the preceding one hundred and seventy (170) numbered paragraphs are a true copy of the Ex-Tempore Reasons for Judgment of the Honourable Justice Christie. Associate:
Dated: 5 May 2023
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