Thistle and Thistle (No. 2)

[2014] FamCA 67

FAMILY COURT OF AUSTRALIA

THISTLE & THISTLE (NO. 2) [2014] FamCA 67

FAMILY LAW – CHILDREN – With whom a child spends time – Where the parties have reached consent in relation to final parenting orders – Where the Independent Children’s Lawyer does not consent to nor oppose the orders – Where there are allegations by the Mother that the Father had sexually abused the Mother’s daughter – Where the time the Father is to spend with the child is to be supervised by the Father’s partner – Where the Father’s partner was required to give evidence about her understanding of her role as a supervisor – Where the Court is satisfied that the orders meet the child’s best interests 

Family Law Act 1975 (Cth)

Champness & Hanson (2009) FLC 93-407 Moose & Moose (2008) FLC 93-375 Slater & Light (2013) 48 Fam LR 573
APPLICANT:	Mr Thistle

RESPONDENT: Ms Thistle

INDEPENDENT CHILDREN’S LAWYER: Ms Sheehy

FILE NUMBER: BRC 9645 of 2011

DATE DELIVERED: 11 February 2014

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Kent J

HEARING DATE: 10 and 11 February 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Oakley

SOLICITOR FOR THE APPLICANT: Sarah Cleeland Family Lawyers

COUNSEL FOR THE RESPONDENT: Ms Pendergast

SOLICITOR FOR THE RESPONDENT:	Dean Kath Kohler Solicitors
COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:	Ms Black
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:	Rhonda Sheehy & Associates

Amended on 17 February 2014 pursuant to rule 17.02 of the Family Law Rules 2004

Orders

IT IS ORDERED BY CONSENT (BETWEEN THE APPLICANT AND RESPONDENT) THAT

1. Pursuant to Rule 10.17 of the Family Law Rules 2004, Orders, declarations and notations be made in terms of the document titled “Minutes of Consent” sealed and attached hereto.

IT IS FURTHER ORDERED BY CONSENT (BETWEEN THE APPLICANT AND RESPONDENT) THAT

1. The father be given liberty to apply to the Court, in relation to the issue of supervision, upon the child Y born … September 2004 turning 13 years of age.

IT IS NOTED THAT the Independent Children’s Lawyer neither consented to nor opposed the making of the above Orders.

IT IS FURTHER ORDERED THAT

1. Pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist the parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders

IT IS DIRECTED THAT

1. The Minutes of Consent remain upon the Court file.

NOTATION

This Order has been amended pursuant to Rule 17.02 of the FAMILY LAW RULES 2004 to provide that the Orders were consented to by the Applicant and Respondent only and the Independent Children’s Lawyer neither consented to nor opposed the Orders being made.

MINUTES OF CONSENT ORDERS

BY CONSENT ON A FINAL BASIS:
PARENTAL RESPONSIBILITY

1. That the mother have sole parental responsibility in relation to all major long term issues concerning the child [Y] (“the child”) born … September 2004.

LIVE WITH AND TIME ARRANGEMENTS

1. That the child live with the mother.

2. That the child spend time with the father as agreed between the parents but failing agreement:-

   (a)Commencing 23rd February 2014 for an initial period of three (3) months, each alternate Sunday, for a period of four (4) hours, supervised at the [B] Contact Centre, with such time to occur off site.

   (b)At the conclusion of phase one as provided for in Order 3 a. above then for a further period of six (6) months each alternate Sunday from 9am until 4pm with such time to be supervised by [Ms C].

   (c)At the conclusion of phase two as provided for in Order 3 b. above then for a further period of six (6) months each alternate weekend from 5pm Friday until 4pm Saturday with such time to be supervised by [Ms C].

   (d)Thereafter each alternate weekend from 5pm Friday until 4pm Sunday with such time to be supervised by [Ms C].

   (e)For Christmas 2015 and each alternate year thereafter from 9am until 4pm with such time to be supervised by [Ms C].

   (f)On … March 2015 from 12 noon until 9pm, for the purpose of the child attending the Wedding of the Father and [Ms C], with [Ms C] to supervise such time. 

CHANGEOVER

1. That unless otherwise agreed between the parents changeovers are to occur at the [B] Contact Centre.

2. That the father is to be responsible for all costs associated with the use of the Contact Centre.

3. For Christmas Day and occasions whereby the Contact Centre is unavailable changeovers are to occur at the McDonalds at [Suburb D] with [Ms C] to collect and deliver the child at the commencement and conclusion of time.

4. For the purpose of the child spending time with the Father pursuant to Order 3 f. above [Ms C] will collect the child at the commencement of time from McDonalds [Suburb D] and the mother will collect the child from [Suburb E Sports] Club at the conclusion of time.

FAMILY DISPUTE RESOLUTION

1. That in the event [Ms C] is no longer available to supervise the child’s time with the father pursuant to these Orders then the parties shall make arrangements to attend upon Relationships Australia or a Family Relationship Centre for the purpose of engaging in a Family Dispute Resolution process in an effort to reach an agreement regarding an alternate supervisor.

2. That these Orders be authority to all health care professionals and educators dealing with the child to release all information pertaining to her to the mother and the father. Each party be at liberty to obtain information pertaining to the child at their own expense.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Thistle & Thistle (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 9645 of 2011

Mr Thistle

Applicant

And

Ms Thistle

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. Today was to be the second day of the trial of parenting proceedings concerning Y born in September 2004, who is thus nine years of age.  These proceedings are pursuant to Part VII of the Family Law Act 1975 (Cth) (“the Act”). Mr Thistle, Y’s father, is the applicant in the proceedings (“the Father”), and the respondent is Y’s mother, Ms Thistle (“the Mother”).

2. Briefly, in terms of the history, the parties commenced cohabitation in late 2003 or early 2004, married in February 2005, and separated on 3 June 2010 in circumstances that will shortly be referred to.

3. Y is the only child of the relationship.  The Mother has two children from a previous relationship, namely, J, born in November 1998, who is now 15 years of age, and T, born in September 2001, who is now 12 years of age. 

4. The trial reached the stage where only two witnesses had given oral evidence and been cross-examined before me.  Ms F, who provided two family reports, was one of those witnesses, and the other witness was Mr L, a social worker who had undertaken some therapy or counselling of the Mother and the children over a period since early last year.

5. The central issue in the parenting proceedings and the event that instigated the separation of the parties are the allegations J made that the Father had sexually abused her.  The Father, on his affidavit material and in other settings, has always vehemently denied the allegations. 

6. The allegations arose on 3 June 2010 in circumstances where it seems that J made statements or allegations to several friends at school which were then taken up by school authorities who then involved the police and the Department of Communities, Child Safety and Disability Services (“the Department”).

7. The troubling feature about the allegations or features about the allegations are first, J’s age when the allegations were made, that is, she was not a very young child; and second, on the evidence, albeit it untested before me, there was nothing to indicate anything untoward in the relationship as between the Mother and Father at the time they arose.  

8. In any event, the Magellan reports that were prepared and marked as exhibit 1[1] before me contain conclusions by the Department substantiating the allegations; whilst other exhibits detailing information coming from the police that have been tendered before me this morning[2] indicate some doubt on the part of the police about the veracity of the allegations.

   [1] Magellan Reports prepared by Ms H on 31 January 2012 and 17 August 2012 respectively.

   [2] Exhibit 3 is a “Chronology of Disclosures” relating to J and her biological father prepared by the Independent Children’s Lawyer; Exhibit 4 is a “Chronology of Disclosures” relating to J and the Father in these proceedings prepared by the Independent Children’s Lawyer.

9. Given that neither of the parents have given evidence in terms of being cross-examined before me nor, for example, has the treating psychologist of J, namely, Ms G, nor other witnesses that would have been called had the trial proceeded, it is not possible for the Court to reach any firm conclusions or findings of fact concerning either that central issue nor, indeed, other issues in the proceedings. 

10. Section 60CC(5) of Part VII of the Act provides that if the Court is considering whether to make an order with the consent of all the parties to the proceedings the Court may, but is not required to, have regard to all or any of the matters set out in subsections (2) and (3) of that section.

11. Subsection (2) of that section is a reference to the primary considerations the Court must have to regard to in determining what is in a child’s best interests.  Those are: (a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and (b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to abuse, neglect or family violence.  Subsection (2A) requires that in applying those primary considerations the Court is to give greater weight to the need of protection referred to.

12. Cases such as this bring into sharp focus the competing considerations of the benefit to the child of having a meaningful relationship with both parents, and the need to protect referred to.  Because the subject allegations essentially go untested in terms of a trial contested to its conclusion, it is not open to the Court to make findings one way or the other concerning the central allegations I have referred to. 

13. On the one hand, matters such as annexure B to the Mother’s affidavit filed 25 October 2012 which purports to be a journal or a series of entries made by J, is to say the least troubling if it is factually correct.

14. The consent orders that have been reached by the parties are neither consented to nor opposed by the Independent Children's Lawyer.  I was informed this morning that the Independent Children's Lawyer has a certain view about the allegations in terms of their veracity, namely, that she more readily dismisses them based on the exhibit that has been tendered this morning compiled from the police records. 

15. For myself, I do not share the comfort that the Independent Children's Lawyer has had in being so ready to dismiss the allegations.  However, as I say, in the end that is not something I can reach any firm conclusion about because the trial did not progress. I did not, for example, have the opportunity to see the Father give evidence, and it may well be that he would prove to be a convincing witness concerning the subject allegations, although one must always recognise the difficulty for anybody of attempting to prove a negative.

16. In the end the subject consent orders provide for the Mother to have sole parental responsibility for Y, for her to live with the Mother (which was never in issue in the proceedings), and otherwise orders for Y to spend time with the Father, initially on a supervised basis at the B Contact Centre, but then progressing to supervision by the Father’s current partner, Ms C. 

17. I required, in considering the orders, Ms C to give evidence so that there would be some comfort in the Court being satisfied that Ms C understands the important role that a supervisor has to play and the onerous obligations it casts, most particularly in the interests of the subject child, but coincidentally in terms of, in Ms C’s case, the interests of her partner, the Father, in terms of protection against unsubstantiated allegations in the future.  I am satisfied on Ms C’s evidence that she understands the onerous obligations she is prepared to assume under the terms of the subject orders.

18. One potentially troubling feature, so far as the orders are concerned, is that they allow for a progression of Y’s time with the Father given Y’s current age, progressing within a period of about nine months to being on an overnight basis, albeit supervised by Ms C.  I sought from the Mother’s Counsel an explanation as to any reconciliation between the Mother’s apparently firmly held view that something untoward happened as between the Father and J, and orders formulated in these terms concerning Y.  In the end it seemed that fundamental to the Mother’s consideration and in circumstances where it seems the proposed orders are largely consistent with the proposal she made at the outset or earlier today, is the evidence of Dr M, a psychologist, who undertook a sexual abuse risk assessment of the Father. 

19. Dr M’s affidavit filed 21 January 2013 attaches his report in which he concludes relevantly as follows (at [18.2]):

    If the allegations are considered true, when considering dynamic risk factors alone, [the Father’s] recidivism risk would be considered LOW, particularly when taking into consideration his personality (i.e. not psychopathic or highly antisocial), present dynamic characteristics and contextual factors (i.e. living with partner, awareness of risky situations/affectionate behaviour, no use of illicit substances, no current or history of problematic use of alcohol and no current mental health concerns). …

20. Dr M goes on to identify a range of characteristics he identified as being protective with respect to future offending.  Of course, Dr M pointed out the obvious, that is, if the allegations were to be considered false, a risk assessment would be unnecessary and there would be no classification of risk.  Dr M also provides in his report an opinion in the scenario that the allegations are considered to be true that the relevant risk concerning the Father would be risk of re-offending in respect of a non-biologically related child.

21. I say all this conscious that it is the Father’s case that he maintains that there is nothing in the allegations, that is, whilst he has no idea why J would mount the allegations that she has, he is vehement in his denials of them and his position is that the allegations are false. 

22. I refer to Dr M’s evidence because it seems to have resonated with the Mother on the submissions made on her behalf today in terms of her assessment of things, that is, that whilst the Mother maintains an honest belief that something untoward happened as between the Father and J, she is satisfied for a range of reasons, but not the least of which is the opinion I have referred to of Dr M, that the same risks are not likely involved concerning Y.

23. In the end the Mother had the opportunity to hear the evidence of Ms F.  She recognised that, notwithstanding her beliefs, there was the need to achieve some balance between any need of protection of Y versus the need for Y to have the opportunity to have a relationship with her Father as discussed by Ms F in her evidence. 

24. I would observe at this point, again in circumstances where it is clear that not all the evidence has been tested before me, that on the evidence, such as it is, it could not be concluded that the Mother’s fears concerning J could be classified as irrational or baseless, and the converse, of course, is that the Father’s denials of the allegations remain extant.

25. It is in these circumstances that the proposed orders are put before the Court which, as I have noted, contemplate a graduation of time between Y moving from supervision at B Contact Centre to supervision by Ms C. 

26. I raised with the parties that consistent with authorities such as Champness & Hanson,[3] Moose &Moose [4] and Slater & Light[5] there needs to be, in this case, what can be conveniently described as a “sunset clause” so far as supervision orders are concerned. The parties thus expressed their consent to an order that the Father be at liberty, on and from Y attaining the age of 13 years, to make application to the Court concerning the provision for supervision.  That would obviate the Father having to otherwise show changed circumstances in bringing further proceedings.[6]

    [3] (2009) FLC 93-407.

    [4] (2008) FLC 93-375.

    [5] (2013) 48 Fam LR 573.

    [6] Pursuant to the “rule” in Rice & Asplund (1979) FLC 90-725.

27. The essential basis upon which the Independent Children's Lawyer neither consented to nor opposed the orders is that she would seek or propose orders in somewhat different terms and in somewhat different timeframes.  However, the Independent Children's Lawyer does not oppose the orders on the basis that these are the orders that the parents of Y have been able to negotiate and reach and, absent any opposition in a substantial way by the Independent Children's Lawyer, I am satisfied on the matters I have briefly outlined that the orders meet Y’s best interests and ought be made.

28. On that basis and for these reasons, I make the orders signed by both the parents now initialled by me and placed with the file and confirm the additional order I have referred to with respect to the sunset clause matter. 

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 11 February 2014.

Associate: 

Date:  12 February 2014