Terril and Van Cortlandt

FAMILY COURT OF AUSTRALIA

TERRIL & VAN CORTLANDT

[2009] FamCA 585

FAMILY LAW – CHILDREN – With whom a child should live and spend time – Magellan list – best interests of the children – meaningful relationship – children’s wishes – where allegations of sexual and physical abuse made against a half-sibling – orders made that children to spend time with the mother but not in the presence of the half-sibling against whom the allegations have been made

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 60CD, 61B, 62G, 65DA, 65 DAC, 68F(2) (repealed), 68 LA.

R & R: Children's Wishes (2000) FLC 93-000
H & W (1995) FLC 92-598

APPLICANT:

Mr Terril

RESPONDENT:

Ms Van Cortlandt

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER:

MLC

4189

2008

DATE DELIVERED:

16 February 2009

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Bennett J

HEARING DATE:

16 February 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr R.P. Hutchins

SOLICITOR FOR THE APPLICANT:

Saines Luces Solicitors

COUNSEL FOR THE RESPONDENT:

Ms H.M. Gordon

SOLICITOR FOR THE RESPONDENT:

Victoria Legal Aid

COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER

Mr D.E. Whitchurch

SOLICITOR FOR THE INDEPENDENT CHILDREN'S LAWYER

Sarah Lia

Orders

That the father and mother have equal shared parental responsibility for the children C born … February 1995 and G born … November 1996.
That the children live with the father.
That upon the mother providing written notice to the father that she wishes to spend time with the children pursuant to this Order the mother spend time and communicate with the children as follows:-
a.From after school Friday to 6.00 pm Sunday on alternate weekends during school terms, to recommence on the first weekend of each school term;
b.From after school to 7.30 pm each Tuesday and Thursday during school terms; and
c.In school holiday periods and on special days as agreed between the parties.
That the mother be, and is hereby, restrained from allowing the children, or either of them, to come into contact with her son, S born … August 1992, or allowing the children, or either of them, to remain in the presence of S, or either of them, when they, or either of them, are in the mother’s care.
That the children, or either of them, spend such time with the child S as the parties may agree upon.
That pursuant to section 65L of the Family Law Act 1975, the Manager of Child Dispute Services for the Family Court of Australia at Melbourne, at the request of either party to the proceeding, nominate a family consultant to supervise compliance by the parties with the parenting order made on 16 February 2009 (“the Order”) and to render to either party such assistance as is reasonably requested by him/her in relation to compliance with, and the carrying out of, the Order, such supervisory counselling to be a period of two years and to be reportable. However no report be prepared unless a further application in relation to the children is filed whilst this order remains in force, the court orders that a report be prepared or the family consultant of his / her own volition thinks a report should be prepared.
AND IT IS NOTED that one of the matters to which the parents may give consideration as being an appropriate matter to discuss with the supervising counsellor is supervision of appropriate time between the children and S by either the father or the maternal grandfather or another nominee of the father.
That, for the avoidance of doubt, each party be and is hereby at liberty to obtain from the children’s schools copies of all school reports, newsletters and other relevant notices at his or her own expense and each party be and is hereby at liberty to attend all school functions, including parent teacher interviews.
That all extant applications be and are hereby dismissed.
That this matter is removed from the list of matters awaiting finalisation.
That the Subpoenaed Documents Clerk of this Registry return any documents produced on subpoena to the owner within 14 days.
That the reasons for judgment this day be transcribed and that copies be made available to the parties.
IT IS REQUESTED that the Independent Children’s Lawyer explain the outcome of these proceedings to the children and, upon her having done so, the order requesting the appointment of the Independent Children’s Lawyer be and is hereby discharged with effect from the time the outcome of the proceedings has been explained to the children.
That pursuant to sections 65DA(2) and 62B the particulars and the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these orders.

IT IS NOTED that publication of this judgment under the pseudonym Terril and Van Cortlandt is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 4819 of 2008

MR TERRIL

Applicant

And

MS VAN CORTLANDT

Respondent

REASONS FOR JUDGMENT

These proceedings concern the children, C, born in February 1995, and G, born in November 1996. They come before me today by way of a final hearing of the parents’ competing applications in the Magellan List of cases.
The proceedings commenced during the morning and adjourned at lunchtime when the father was part-way through giving evidence‑in‑chief, having obtained leave to do so. After lunch, counsel for the mother requested some further time to speak with her client. When I reconvened at 3 pm this afternoon, I was informed by the mother's counsel, Ms Gordon, that the mother had withdrawn her application and left the court building. Ms Gordon does not have instructions to consent or to oppose the proceedings before the court.
The matter which requires determination is the time which the children are to spend or live with the mother and whether there are conditions which must attach to the extent to which the children's older sibling, S, born in August 1992, can be with the children.
S is the mother’s child from a previous relationship.
The father's case is that C and G have been sexually abused by S.
The mother's case, insofar as I have read the documents, is that if there was any inappropriate behaviour, it is not a matter which should be visited by a blanket prohibition on C and G seeing S.
Prior to the matter commencing in evidence, the parties and the independent children's lawyer outlined the material upon which they relied. That included, in the case of the mother, a report by a psychiatrist who had assessed S in November last year.
The independent children's lawyer is Ms Sarah Lia. Ms Lia was appointed pursuant to an order made in the Ballarat Magistrates Court on 7 May 2008. Her role is to form an independent view based on available evidence of what is in the children's best interests and then act in these proceedings in what she believes to be the best interests of the children. She is not a legal representative retained by the children and she is not bound by any instructions from the children. The role of the independent children's lawyer is to deal impartially with the parties, ensure that any views expressed by the children are fully put before the court, to analyse documentary expert evidence and reports and to distil from that evidence significant matters for the purpose of properly drawing them to the court's attention. The independent children's lawyer is also under a specific duty to take steps to minimise for the child the trauma associated with the proceedings and to facilitate an agreed resolution of matters at issue in the proceedings to the extent that it is in the best interests of the children to do so.
S, whom it is alleged has abused both of the children, is not represented in these proceedings.
The father seeks orders that he and the mother share parental responsibility for C and G; that the children live with him; that the mother spend time and communicate with the children from after school on Friday until 6 pm on Sunday on alternate weekends during school terms and from after school each Tuesday and Thursday to 7.30 pm; in the school holiday periods and on special days as agreed between the parties. All such time is to be subject to the mother being restrained from causing, permitting or suffering the children or either of them to come into contact with S or allowing the children or either of them to remain in the presence of S when they or either of them are in the mother's care.
Until the mother withdrew from the proceedings, her case was articulated in her amended response to an initiating application filed on 12 February 2008. She seeks that there be joint parental responsibility for the children; that the children live with the parents on a weekabout arrangement with the changeover day to be Friday at the conclusion of school, with provisions for Christmas Day and certain orders concerning the provision of school reports and newsletters. She also sought an injunction against the parties denigrating the other party to or in the presence or the hearing of the children or allowing the children to remain in the presence of anyone doing so. She seeks no restriction on G or C being with S.
The independent children's lawyer supports the father's case.
In assessing the evidence I apply the balance of probabilities as the standard of proof. In these reasons, statements of fact are findings of fact.
The proceedings are brought under Part VII of the Act. Pursuant to section 60CA, I must regard the best interests of the children as the paramount consideration when deciding what parenting orders.
Whereas the mother no longer opposes the orders sought by the father, I ought not make them unless I am satisfied that the orders he seeks are consistent with the children's best interests.
This is a court of private law. It is not the court's place to require parties to continue to press an application they have previously made. I proceed on the basis that if the mother could have brought to the proceedings any further information or evidence in opposition to the father's case, then she would have done so. I have read what had been filed on her behalf.
Subject to the best interests of the children being the paramount consideration, I have regard to the aims and principles of Part VII. I am required to ensure that the best interests of the children are met by ensuring that they have the benefit of both of their parents having a meaningful involvement in their lives to the maximum extent consistent with their best interests. I must protect the children from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence and ensure that the children receive adequate and proper parenting to help them achieve their full potential. A further aim of the act is to ensure that parents fulfil their duties and meet their responsibilities concerning the care, welfare and development of their children. These may be regarded as the core values of the legislation.
The principles which underlie the objects are more specific but are not exhaustive. Unless it would be contrary to the children's best interests to do so, children have a right to know and be cared for by both parents. They have a right to spend time with both parents on a regular basis, as well as with other people significant to their care, welfare and development. Children should also have a right to enjoy the culture of each parent.
In determining what is in the children's best interests, I am required to consider two primary considerations and several additional considerations, all of which are listed in section 60CC of the Act. The primary considerations echo the first two objects set out in section 60B and they are the benefit to the children of having a meaningful relationship with both of their parents and the need to protect the children from physical or psychological harm or from being subjected to or exposed to abuse, neglect or family violence. This is a case where both primary considerations are relevant and both have to be weighed against each other.
In this case neither party contends that the other party ought not have a meaningful relationship with the children. They are in dispute about how this can be achieved and, in particular, they are in dispute about the extent to which the children can be in the presence of their older sibling, S. The meaningfulness of the relationship that the mother can have with the children is, in her view, jeopardised by the fact that if the father succeeds she will be precluded from permitting the children to be with S. S is a child for whom she cares on an almost full‑time basis. He is still a minor being less than 17 years of age. It is the mother’s contention that S has nowhere else to go, save for brief times that he might stay with his natural father. Having read all of the material, I am far from satisfied that the environment provided by S’s natural father is an advisable place for S.
The second of the primary considerations is the necessity to protect the children from physical or psychological harm, including being exposed or subjected to abuse, neglect or family violence.
The term, ‘abuse’ is narrowly defined in s 4 of the Act as ‘an assault, including a sexual assault, of the child’ (s4(a)) or as the involvement of the child in a sexual activity by a person, where the child is used either directly or indirectly as a sexual object and where there is an unequal balance of power between the child and that person.
‘Family violence’, however, is given a broader definition as actual or threatened conduct toward another person, their family or their property, which causes reasonable fear or apprehension for their safety and wellbeing.[1] A notation to the definition in the legislation adds that the standard for such reasonable fear or apprehension is that of the reasonable person in those same circumstances. ‘Neglect’ is not defined in the Act.
[1] s 4 Family Law Act 1975 (Cth).
This factor also requires a prospective evaluation. As such, I must assess the future risk of exposure to the child of physical or psychological harm and formulate orders which protect the child from that harm.
It is alleged in this case that in or about April 2008 the children complained to their father that S had exposed his genitals to them and asked them to touch his penis. The father deposes in his affidavit as follows:
7.When the children told me on 4 April 2008 that they had been repeatedly sexually abused by [S], I was driving the children in the car at the time. [C] said she had something to tell me. I asked what it was and she said “[S] has been doing stuff”. When I asked her “What sort of stuff?” she replied “He won’t stop pulling his dick out and showing me dad”. On further questioning she said “He tries to get me to touch it”. She said “He grabbed my hand and tried to force me to touch it but I pulled my hand away”. When I asked if he did anything with his penis she said “He does this” and then made hand motions indicating masturbation. [C] told me this had been happening since she was 10 years old (for the last 3 years) and that it had happened too many times to count. She said she didn’t want to tell me about it earlier as she was too embarrassed but it was now becoming more and more frequent. The children had just come back from spending part of the school holidays at a holiday house at [O] owned by the Maternal Grandmother and [C] said the abuse had continued down there.
8.I then asked [G] “You know that thing that [C] said about [S], has he been doing it to you?” [G] said “Yes, he’s been doing it to me too Dad.” I was too shocked to continue to discuss the matter for about 15 minutes, but then I asked [G] what [S] had done to him and [G] said “He tried to force me to touch it and when I pulled away it touched my arm.” Given the context of the conversation I was certain [G] was talking about [S’s] penis. [G] then said that he couldn’t count how many times such actions by [S] had occurred and, as far as he was concerned, such behaviour had started about a year ago. He didn’t tell me earlier he said because he “Just wants to forget about it”. In my understanding neither [C] nor [G] knew the other was being abused by [S] until this conversation on 4 April 2008.
The mother's response is that she was unable to comment on what the children may have told the father:
As to paragraph 7 and 8 I can not comment on what the children may have told the applicant.
Subsequently the children were interviewed by Victoria Police. A transcript of their interview and a videotape of their interview has been tendered in these proceedings.
Having read the mother's material, it appears to me that the mother does not deny the children's allegations, but she says that they are blown out of proportion and it would be inappropriate to impose a blanket prohibition against the children seeing S under any circumstance and that she will care for them responsibly in her household with S there as she considers appropriate.
As I have said, this is a court of private law. The mother, in leaving the court, has not sought that the father's version be tested.
I am satisfied that the father's allegations are substantially correct and that S has acted in a sexually inappropriate manner in front of his younger brother and sister. It is in this context that I turn to assessing what is in the best interests of the children
In assessing what is in the best interests of the children, I am directed to several additional considerations, the first of which are the children's views.
In determining what is in the child’s best interests the Court must consider, amongst other factors, any views expressed by the child and any other factors that the Court thinks are relevant to the weight to be accorded to the child’s views. Previously there was a similar provision,[2] which required the court to take into account the child’s ‘wishes’. There is significant jurisprudence from this court in relation to children’s wishes which, as will become apparent, I consider relevant and helpful in relation to the Court’s assessment of, and weight to be accorded to, children’s views in the context of s 60CC(3)(a) of the Act.
[2] The repealed s 68F(2) Family Law Act 1975 (Cth).
The Full Court of the Family Court considered children’s wishes in

R & R: Children's Wishes
(2000) FLC 93-000. The Court, there comprising Nicholson CJ, Finn and Guest JJ, cited with approval the following statement of principle drawn from the joint judgment of Fogarty and Kay JJ in H & W (1995) FLC 92-598 at 81,944:
The wishes of children are important and proper and realistic weight should be attached to any wishes expressed by children.
There is a distinction between the concept of children’s wishes and children’s views. ‘Views’ will capture a child’s perceptions, inclinations and feelings but not necessarily involve an aspiration or conclusion. ‘Wishes’ are the result of perceptions, inclinations and feelings coalescing into a specific desire or ambition in the child’s mind. The requirement to focus on the child’s views, as opposed to wishes, means that I may have regard to the child’s perceptions and inclinations without requiring the family consultant or independent children’s lawyer to make enquiries or elicit the child’s ultimate preference or wish. I agree with the reference in the Revised Explanatory Memorandum[3] that consideration of the children’s views will:-
allow for a decision to be made in consultation with the child without the child having to make a decision or express a ‘wish’ as to which parent he or she is to live or spend time with.[4]
Consideration of a child’s views does not exclude consideration of a child’s wishes.
[3] Revised Explanatory Memorandum, Family Law Amendment (Shared Parental Responsibility) Bill 2005 (Cth).
[4] Ibid paragraph 56.

Once a child's views are ascertained, the next step in interpretation and assessment of these views requires a balancing of the views against the applicable primary and additional considerations which are relevant to the child's welfare. This process was is described by the Full Court in R v R , in relation to children’s wishes, as follows:-
42. […] the court will attach varying degrees of weight to a child's stated wishes depending upon, amongst other factors, the strength and duration of their wishes, their basis, and the maturity of the child, including the degree of appreciation by the child of the factors involved in the issue before the court and their longer term implications. Ultimately the overall welfare of the child is the determinant. That is so because the legislation says so and also because long before specific legislation the practice of the Court in its parens patriae jurisdiction established that view.
54. […] There are many factors that may go to the weight that should be given to the wishes of children and these will vary from case to case and it is undesirable and indeed impossible to catalogue or confine them in the manner suggested. Ultimately it is a process of intuitive synthesis on the part of the trial judge weighing up all the evidence relevant to the wishes of the children and applying it in a commonsense way as one of the factors in the overall assessment of the children's best interests.
I consider that in the discussion by the Full Court in R v R, reference to ‘wishes’ may be read interchangeably for ‘views’.
The court may inform itself of views expressed by children by having regard to anything contained in a report given to the Court by a family consultant[5] or other expert or appropriately qualified person retained by the parties or through the independent children’s lawyer.[6]
[5] ss 60CD(2)(a), 62G(2) and 62G(3A) Family Law Act 1975 (Cth), the last provision of which generally requires the person giving the report to ascertain the child’s views and include them in the report.
[6] ss 60CD(2)(b), 62G(2) and 68LA(5)(b) Family Law Act 1975 (Cth), the last provision of which requires an independent children’s lawyer to ensure that the child’s views are put before the court.
As part of the court's preparation of this matter for trial, a family report was ordered and was prepared by Mr N, a family consultant. It arises out of interviews in October and November 2008. It is a well-reasoned, internally consistent report to which I give weight. At paragraphs 39, 41 and 42 Mr N says the following of C’s views:
36[C] is currently 13 years old and in year eight at school. From the outset, [she] understood she was attending upon this Family consultant to talk about what [S] does to her.
37She said that [S] is sometimes mean to her mother and has done things to her over the years. She initially stated that he was a (sic) violent, but then corrected herself and said, “Actually very violent”. She said he has hit her, thrown objects and has punched her very hard and she does not believe he recognises his own strength.
38She said [S] is happy only when he gets his own way and he has to have control of everything. She said [S] does not care what her mother says and does not listen to her at all – he is a bully. She has known [S] her whole life and said that she does not like who he has become because he screams, yells, throws things and she knows he has something wrong with him.
39[C] said that [S] recently picked her up and held her upside down by her feet for no reason; his friend was also present and laughing at her. She said that [S] does things to get a reaction and he dropped her to the ground. [C] said her mother told [S] to put her down, but later her mother said that he was only playing. She added that her mother is always making excuses for him and picks up everything for him – “She is his slave”. [C] stated that her father was able to manage [S’s] behaviour better than her mother.
40[C] recalled when she was interviewed by DHS and police at school regarding [S’s] behaviour and advised this Family Consultant that she did not wish to discuss the matter again. Later in the interview, this Family Consultant re-approached this topic and [C] stated that [S] showed his private parts as well as [J] (another teenage boarder). [C] stated that [J] denied [S] did this so he would not get into trouble.
41As to the future, [C] stated that she would like to live with either parent at her discretion. She advised that if she could spend time with her mother without [S] being present this would be good. However she believes [S] could only stay for one day at some other place because his mother is too much of a security blanket for him.
In relation to [G] the report writer states:
43.[G] is 12 years old and in grade six at school. He initially advised regarding [S], “He’s pretty mean…he’s a bully…. Don’t like him that much”. A few days prior to this scheduled interview, [G] said that [S] pushed him over for no reason whilst visiting his mother. He is used to [S] having a “psycho attack” and smashing things. He remembered once [S] punched his hand through the glass laundry door and his hand was covered with blood, he kicks things and has thrown a hammer, [G] said.
44.[G] was more at ease to discuss the sexual abuse allegations and stated that [S] showed him his private parts on several occasions, randomly and at any time. He said it happened a lot, but only when his mother was not around. [G] said, “There’s other stuff too”, but did not want to talk any further. Regarding a specific occasion when the family were at [the holiday house], he indicated that [S] exposed himself to both himself ([G]) and his sister and they told their father. [G] said they previously told their mother about this matter, but she did nothing. However, when they told their father this was much better.
45.[G] said that [S] does what he wants, when he wants, and that his mother is unable to control him – he just gets madder. He then added that his mother does not really try to control [S].
46.[G} said that he likes living with his father because he does not see [S]. He stated that it would be better if he could visit his mother without [S] being present. [G] acknowledged that [S] is currently somewhat better, but he still swears and has punched him. Lastly, [G] stated that he does not think his father was wrong in taking this action.
The report writer sums up the situation as follows:
47.Based upon the aforementioned, [C] indicated that she would like to live with either parent at her discretion. [G] indicated that he would like to continue living with his father and spend time with his mother without the stepbrother present.
Having regard to the ages of the children I am satisfied that I should give weight to their views. I should also give weight to their views because they appear to be reasonably formed.
At the commencement of the applicant's case I posed the question to counsel for the applicant, "When, on the applicant's case, would these children ever see [S] again?" It seemed to me from having read all of the material relied upon by the parties that this was something to which neither party had perhaps turned their mind. It is one thing to protect the children, it is another thing to leave them with a sense of responsibility that they cannot see their older brother and that their older brother is to be somehow excluded from his only real home because they are visiting the mother.
I did not get an answer in the father's evidence given prior to lunch, and then the proceedings were cut short and he did not go back into the witness box. I am informed from the bar table that the father's position on seeing S in the future is that if the children wish to see him, he will facilitate it. He merely wants to make sure that they will be safe. He suggested that the maternal grandfather, who was here for some of the morning, would be an appropriate supervisor or that he himself would supervise time between S and C and G. Either of them seem appropriate. In particular, these are proposals which remove responsibility for supervision or demarcation away from the mother.
Because there is no ability to hear from the mother in this regard, it seems to me to be an appropriate case where I make an order under section 65L which would have the effect of having a family consultant assigned to the case if either party activate the matter through the Office of Child Dispute Services. It sounds rather convoluted. I will rely on the legal representatives for the mother and the father to explain to their respective clients what supervised counselling entails.
The next matter I consider is the nature of the children's relationship with each of the parents and other persons, inclusive of grandparents and other relatives. These children were in the primary care of the mother for a considerable time. I accept that they have a close relationship with the mother. Similarly, they have a close relationship with the father in whose care they have been since the middle of last year.
At issue in these proceedings is the effect on the children of the presence of the child, S, but I must not ignore that S is a person who the children have known all of their lives and lived with all of their lives, until they went to live primarily with the father. I do give weight to that relationship.
I am satisfied that the father's proposals for the mother to spend time with the children are appropriate, subject to the condition about S not being in the household. I would hope that with the benefit of those orders the children will be able to maintain what I have no doubt is a close and beneficial relationship with their maternal grandparents.
I have regard to the ability of each of the children's parents to facilitate and encourage a close and continuing relationship between the children and the other parent. It is also necessary for me to assess the extent to which each of the parents has today fulfilled or failed to fulfil their obligations or frustrated the other parent's participation in that regard.
This is not a matter which was at issue before me. Both of the parents appear to be child‑focused. Each recognises that the other has much to offer the children. The criticism levelled by the father at the mother's parenting is that she has not given due weight to the safety of C and G.
I consider the likely effect of any change on the children's circumstances in relation to separation from the mother, S and the wider family, including grandparents and other persons with whom the children have a relationship. I will be making orders which restrain the mother from bringing the children or either of them into contact with S. However, if the children express a desire to see him, then the father says he will facilitate that to occur and I accept that he will do so. Otherwise I do not appreciate that the orders that I make must have a particularly significant change on the children's circumstances. It is open to the mother to spend time with C and G although not as regularly as she would like.
I take into account the practical difficulty and expense of the mother spending time with and communicating with the children if she is not permitted to have S in the household at that time. I can appreciate this will be burdensome for the mother and, indeed, may be very difficult for the mother but it is a precaution that I am satisfied the children's safety requires.
I have regard pursuant to section 60CC(3)(f) to the capacity of each of the parents to provide for the needs of the children, including their emotional and intellectual needs. This is a case where it appears that the mother's only shortcoming has been to not put into perspective the feelings and the safety of the children whilst in the presence of S. I accept this as a shortcoming of the mother.
I consider the maturity and lifestyle and background of the children. The family report refers to them as "mature and pleasant children". I take into account the attitude to the children and to the responsibilities of parenthood demonstrated by each of the children's parents. There is a certain crossover in these considerations. As the family consultant opined at paragraphs 60 to 64:
60.In this Family consultant’s opinion, this matter has two distinct layers and both will be addressed in turn. It is acknowledged at the outset that as part of the family evaluation this Family Consultant has not interviewed [S], the young person at the centre of these concerns. Solicitors acting for [S], advised that he would not be participating in the interviews for the Family Report because his criminal charges were still being dealt with.
61.At the first level, based upon the available information from the two professional reports as noted above and discussions with the family, it would appear that significant concerns exist regarding [C] and [G] continuing to be around [S]. This young person appears to have significant behavioural problems, has already been quite physically aggressive and both children disclosed to DHS and this Family Consultant information about [S’s] sexual offending. Hence, in this Family Consultant’s opinion, [S’s] behaviour poses a risk to both [C] and [G’s] safety and wellbeing.
62.The second level is that [the mother] is not a protective parent regarding [C], [G] or [S] in any way, shape or form whatsoever. She does not accept that [S] has done anything wrong and therefore there is no reason to protect the children from him and doesn’t protect him either. In this Family Consultant’s opinion, it is unsuitable to have [the mother] in the position to monitor or supervise [C] and [G] being around [S]. It would appear that even in her presence, [S] has been physically aggressive towards the children and she has done little to curb his behaviour. This Family Consultant questions whether [the mother] is either completely incapable of managing, controlling or stopping [S’s] behaviour or she chooses not to.
63.This Family Consultant was alarmed that [the mother] rejected outright that [S] had done anything wrong, but then went so far as to blame [C] for being sexually provocative and seeking to go into the shower with her brother, which she had to curtail. In this Family Consultant’s opinion, [the mother] has demonstrated her preparedness to defend [S] and excuse his behaviour at all costs. The motivation to remain non-protective is puzzling and her defensiveness and trivialisation of the children’ fear suggests he has a limited capacity to nurture and protect.
64.It is clear that both children seek to continue to have a relationship with their mother. However, alternative arrangements, albeit cumbersome and restrictive, need to exist to ensure facilitation of both children spending time with their mother, but not at the expense of possible physical, emotional and sexual abuse.
I note that as part of this matter being taken into the Magellan list of cases, a report was requested and obtained from the Department of Human Services. That is exhibit C1 in the proceedings. The report notes that “[t]here is information to suggest [C] has been subjected to inappropriate sexual abuse by her 15‑year‑old half-brother [S].”
The independent children's lawyer, in part of the written submissions filed on 4 February 2009, referred to the fact that the mother has relied upon an autism assessment report of S in November 2008 by the regional Health Services. That is exhibit M1 in these proceedings. It is noteworthy that the mother has had discussions with the clinicians about S and his socialisation, but does not volunteer any information to the assessing specialists about either the criminal charges currently faced by S or the allegations of violent and sexually inappropriate behaviour in this court.
I have regard to family violence involving the children. I note that at paragraph 67 of the family report Mr N states:
67.In this Family Consultant’s opinion, for the future wellbeing of both children, this cycle of exposure to family violence needs to end. [C] and [G] have a right to be afforded an adequate level of protection within the family home whilst they spend time with their mother. [The mother] demonstrates little capacity to provide such for these children and this is also supported by the Magellan Report prepared by DHS.
I have regard to whether it would be preferable to make an order least likely to lead to the institution of further proceedings in relation to the children. Parenting proceedings are never final in the sense that children and their parents' circumstances change and arrangements may need to alter as a consequences of those changes. Ideally, the court should make parenting orders that minimise the prospects of future litigation because litigation is costly in emotional and financial terms and may have the effect of standing in the way of the parties' effective parenting of the children.
It is unfortunate that the mother has left court and that the proceedings must be resolved without further input by her. However, it is my view that they should be resolved, notwithstanding that she has no input into their final resolution. That is a matter of choice on her part.
I am satisfied that the children's best interests are met by continuing to reside with the father and that the mother should spend the time with the children as was proposed by the father, providing that she does not permit, allow or suffer the children or either of them to come into contact with S.
Both of the parties seek joint parental responsibility. Parental responsibility in relation to children means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.[7] In making parenting orders in relation to children, I am (subject to a few exceptions) required to adopt as a starting point that it is in the best interests of the children that the parents have equal shared parental responsibility.[8] Equal shared parental responsibility relates to decision making about ‘major long term issues’, which is defined in s 4 of the Act as follows:-
…… issues about the care, welfare and development of the child of a long‑term nature and includes (but is not limited to) issues of that nature about:
a) the child’s education (both current and future); and
b) the child’s religious and cultural upbringing; and
c) the child’s health; and
d) the child’s name; and
e) changes to the child’s living arrangements that make it significantly more difficult for the children to spend time with a parent.
This presumption does not provide a starting point about the amount of time or communication that a child is to have with parents.
[7] s 61B Family Law Act 1975 (Cth).
[8] s 61DA(1) Family Law Act 1975 (Cth).
Where two or more persons share parental responsibility, equally or in relation to any major long-term issue under a parenting order, they are required to make the decision jointly.[9] The concept of joint responsibility carries with it the requirements to ‘consult the other parent in relation to the decision to be made about that issue’[10] and to ‘make a genuine effort to come to a joint decision about that issue’.[11] These provisions mean that consultation between the parties is required regarding major long-term decisions for which parental responsibility is shared.
[9] s 65DAC(2) Family Law Act 1975 (Cth).
[10] s 65DAC(3)(a) Family Law Act 1975 (Cth).
[11] s 65DAC(3)(b) Family Law Act 1975 (Cth).
The presumption that it is in the best interests of the children that the parents have equal shared parental responsibility does not apply or is rebutted in the following circumstances:-
a)If the court reasonably believes that a parent of a child, or a person who lives with a parent of a child, has engaged in family violence[12] or abuse of the child or another child who is a member of the parent’s family;[13]
b)If, at an interim hearing, the court considers it is inappropriate for the presumption to apply[14] or;
c)Where evidence is adduced, upon which the court is satisfied that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.[15]
[12] s 61DA(2)(b) Family Law Act 1975 (Cth).
[13] s 61DA(2)(a) Family Law Act 1975 (Cth).
[14] s 61DA(3) Family Law Act 1975 (Cth).
[15] s 61DA(4) Family Law Act 1975 (Cth).

The family consultant expressed reservations about the viability of joint parental responsibility. At paragraph 59 he opined:
In relation to considering shared parental responsibility, the parents are likely to experience difficulty at the moment reaching agreement about important decisions regarding the children because of their uncooperative parenting style and the current allegations afoot. Neither party is able to effectively communicate with the other, but this Family Consultant observed [the father’s] attempts in a conciliatory manner in the reception area and it was noted that everyone left for the day together. Although both parents continue to seek involvement in the upbringing of their children, [the father] makes many of the day-to-day decisions because they are in his care most of the time. In this Family Consultant’s opinion, [the mother’s] inability to act protectively regarding the children would create great difficulties for both parents to equally share parental responsibility.
Mr N’s views have merit. However, as both parties seek joint parental responsibility on an ongoing basis I am prepared to make orders accordingly and I will do so.
Having made that order, I am required to consider whether it is in the children's best interests for there to be equal or substantial or significant time with both parents. For the reasons I have expressed above, I am satisfied that equal or substantial or significant time is not appropriate. It would be contrary to the best interests of the children to order it occur.
The time spent between the mother and C and G should be that which can be managed with the children being kept safe whilst in the mother's care. That said, if the mother avails herself of her entitlement under the orders, she will have time with the children which includes week days, weekends, holidays and non-holidays. She will be involved in the children's daily routines.
Taking all of those matters into account, I am satisfied that the orders that I will make are in the best interests of the children.
I am informed by counsel for the independent children's lawyer that she has met the children which, in this case, is entirely appropriate. Having regard to the manner in which the proceedings have been concluded, I consider it to be in the children's best interests that the independent children's lawyer explain to them the outcome of the proceedings and so I will postpone the effect of the order discharging the ICL until such time as that that has been done.

I certify that the preceding sixty eight (68) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett.

Associate:

Date: 21 June 2009

[2009] FamCA 585

16 February 2009

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