Tranmere and Cleaver

FEDERAL CIRCUIT COURT OF AUSTRALIA

TRANMERE & CLEAVER

[2014] FCCA 1827

Catchwords:
FAMILY LAW – Interim arrangements for care of child aged 3½ years – high conflict – time child should spend with father – parties separated prior to child’s birth – child has limited relationship with father – allegations of family violence and child abuse made – father asserts mother intent on sabotaging his potential relationship with child – parties live in rural South Australia – limited facilities available for supervision – assessment of risk – anxiety of mother – meaningful relationship – family assessment report – best interests.

Legislation:

Family Law Act 1975, ss.4; 60CA; 60CC; 61DA; 69ZW

B v B: Family Law Reform Act 1995 (1997) FLC 92-755
Russell & Russell & Anor [2009] FamCA 28
N & S and the Separate Representative (1996) FC 92-655
M & M (1988) FLC 91-979
W and W [Abuse allegations: unacceptable risk] [2005] FamCA 892
A v A (1998) FLC 92-800

Applicant:

MR TRANMERE

Respondent:

MS CLEAVER

File Number:

ADC 4457 of 2013

Judgment of:

Judge Brown

Hearing date:

4 August 2014

Date of Last Submission:

4 August 2014

Delivered at:

Mount Gambier

Delivered on:

15 August 2014

REPRESENTATION

Counsel for the Applicant:

Ms Kelly

Solicitors for the Applicant:

Nicholls Gervasi & Co

Counsel for the Respondent:

Ms Pyke QC

Solicitors for the Respondent:

Angela Ferdinandy

Counsel for the Independent Children’s Lawyer:

Mr Boehm

Solicitors for the Independent Children’s Lawyer:

Legal Services Commission Whyalla

ORDERS

The father spend time with the child X born (omitted) 2011 on one occasion in each of the months of August, September and October of 2014 at specific times to be nominated by the director or his/her nominee of the (omitted) Children's Contact Centre subject to the following:
(a)each period is to take place at the (omitted) Children's Contact Centre and be subject to the supervision of the Director of the Centre or his/her nominee;
(b)the visits are to be at the expense of the father;
(c)the child is to be delivered to the (omitted) Children's Contact Centre at the beginning of each such period referred to in order (1) hereof and returned to the mother at their conclusion by the maternal grandmother;
(d)after the visits the father is to obtain a report from the Director of the Centre regarding the children’s reactions to the visits.
Further consideration of the matter is adjourned to 15 October 2014 at 9.30am.

IT IS NOTED that publication of this judgment under the pseudonym Tranmere & Cleaver is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 4457 of 2013

MR TRANMERE

Applicant

And

MS CLEAVER

Respondent

REASONS FOR JUDGMENT

Introduction

These proceedings relate to the appropriate interim or provisional arrangements, if any, for a child of three and a half years of age to spend time with her father, pending preparation of a detailed family assessment report.
The child concerned is X born (omitted) 2011. Her father, the applicant in the proceedings, is Mr Tranmere. Her mother is Ms Cleaver.
The mother’s preference is that there should be no time, at present, between the father and X. The father seeks what he would characterise as a cautious but workable outcome in the short term, namely that he spend time with the child, at the home of his sister, Ms D, in (omitted), and subject to her supervision.
Mr Tranmere is an (occupation omitted), who lives in (omitted). Ms Cleaver is engaged in home duties. She lives in (omitted). It is just under 300 kilometres between the two locations.
The parties have never been married. The relationship between them was a brief one. They separated in late 2010, prior to X’s birth. The parties agree that X has lived exclusively with the mother, since her birth and has had extremely limited involvement with the father.
The father asserts that the mother is unstable and intent on ensuring, by whatever means are open to her, that X does not have a viable parental relationship with him. At the time of his initiating application, in November of 2013, he had not seen X since February 2012.
Mr Tranmere has been previously married. He has three children from that marriage, who live with their mother, Ms B, in (omitted). The children are A aged seven; B aged nine; and C aged twelve.
The mother asserts that the father is a controlling and abusive person, who has demonstrated little insight into the parenting needs of either his own children or X in particular. She also alleges that Mr Tranmere suffers from a number of psychiatric illnesses.
In addition, she asserts that on the few occasions the father has interacted with X, he was rough with her and insensitive to her needs. It is also the mother’s case that, in October of 2011, whilst she was pregnant with X, the father assaulted her by pushing her backwards and choking her. Accordingly, she characterises Mr Tranmere as a violent and unstable person.
Ms Cleaver has also been previously involved in a significant relationship, which produced a child. This child is Y, who is aged around seven or eight years. The mother is also highly critical of the father’s previous involvement with Y.
The father’s position, both at this stage and in the longer term, can be summarised from this extract from his initiating affidavit:
“I want to be involved in X’s life, and for her to know me as a father. I want her to have a relationship with her half-sisters, A, B and C, and to be part of their lives.
In the short term, I would like to have X on a gradually increasing basis, commencing with frequent short visits, and increasing to overnight time. I would like to share birthdays, Christmas and special occasions like Easter on an alternating basis. I would like to have time with X on Father’s Day each year.
Once my relationship with X is established, I would like to move towards a shared care arrangement on a week-about basis. I am prepared to change my place of residence and my employment in order to facilitate a meaningful relationship with my daughter, and between her and her half-sisters.”[1]
[1] See father’s affidavit filed 27 November 2013 at paragraphs 63-65
The mother’s position can be summarised from this extract from her initiating affidavit:
“…X does not know the father and does not remember him. I am opposed to the father spending time with her in the absence of a full psychiatric assessment as to the risk he poses to her. In any event, after that assessment, I am concerned to ensure that only supervised visits occur until it can be established that he is of no risk to her.”[2]
[2] See mother’s affidavit filed 17 December 2013 at paragraph 79
In a formal sense, it is the mother’s position, both at the interim and final stage, that no orders be made for the father to spend time with X. Rather, the mother seeks an order that X live with her and she (Ms Cleaver) have sole parental responsibility for her.
The father proposes that the parties have equal shared parental responsibility for X and that he should spend time with her, initially for periods of two hours on Wednesdays and Saturday, progressing in three weekly increments to five hours and then overnight until Sunday.
Given the polarised positions of the parties, it is hardly surprising that these proceedings have been bitterly contested and are replete with uncorroborated assertions of poor, criminal and erratic behaviour on the part of the other parent or persons associated with them. These include the following:
·The maternal grandmother hired a hit man to assassinate the mother’s previous partner;
·The father does not live in (omitted), but is itinerant;
·The mother is mentally unstable and threatened to take her own life, during her pregnancy with X;
·The father mistreated Y’s pet dog;
·The mother had left Y beside the road and exposed her to danger through her erratic driving;
·The mother has strange ideas about nutrition;
·Each party asserts that the other is irrational.
For reasons which will become apparent, in due course, these proceedings have now been on foot for a period of around eight months, during which the progress made towards reaching any resolution, either temporary or permanent, has been glacially slow.
This has not been reflected in the affidavit material filed in the proceedings, which appears to have increased exponentially. Regrettably, in my assessment, the proceedings have many of the worst aspects of contested litigation, in this court, particularly at the interim stage.
These unfortunate aspects include the tendency to file lengthy affidavits, responding to other affidavits previously filed. This process of assertion meeting denial leads to a process of fresh allegations precipitating further denial and yet more expensively produced paper.
In the mother’s case, she has also recently raised allegations of sexual abuse, involving the father and A, B and C and accused the father of having raped her in late 2010. These matters were not raised in her original affidavit material.
In addition each party has enlisted those close to him or her in blood, against the other. The consequence is that now the maternal and paternal aspects of X’s family are hopelessly and perhaps irreconcilably divided.
Against this unhappy background, I determined that X should be independently represented. Her representative is Ms Bosch, a solicitor employed by the Legal Services Commission of South Australia, at its (omitted) office.
The law requires Ms Bosch to formulate a position, based on the evidence available to her, which she thinks will be in X’s best interests.[3] Accordingly, the independent children’s lawyer is to be regarded as a party of equal importance to the parents concerned.
[3] See Family Law Act 1975 at section 68LA
Ms Bosch has briefed a barrister, Mr Boehm, to appear on her behalf in the current proceedings, which largely centre on issues to do with potential arrangements for Mr Tranmere to spend time with X and how that time is to be supervised.
Mr Boehm has submitted that the independent’s children’s lawyer considers Ms D to be a suitable person to provide any necessary supervision and she provides the best option, in this regard, in a case which is bereft of more viable alternatives.

History of the proceedings to date

The father commenced these proceedings on 27 November 2013. He asked for the proceedings to be listed urgently. At that stage, he was fearful that the mother might be intent on moving X from (omitted). Given this alleged urgency, the application was listed on 17 December 2013.
On 9 December 2013, Mr Tranmere filed an application in a case seeking to dispense with the formal service of the application. His solicitor asserted that a process server had personally served Ms Cleaver, with the application, in (omitted), but that the documents in question had been handed into the (omitted) Police Station endorsed with Mr Tranmere’s name.
It was not necessary for the court to deal with this application, as Ms Cleaver appeared at court on 17 December 2013 represented by senior counsel. At this stage, a response and an answering affidavit were handed up on Ms Cleaver’s behalf.
As I recall, Mr Tranmere and those advising him had not had any reasonable amount of time to consider these documents, which contained many allegations of misconduct on his part, which he wished to answer.
On this basis the father sought to adjourn the proceedings. This was not opposed by the mother provided an interim order was made that X live with her. As this was the longstanding status quo, such an order was made and the proceedings were adjourned until 13 February 2014.
In the meantime, the father filed five further affidavits. Included in these affidavits was an affidavit of Ms D. Ms D is an (occupation omitted), who lives in (omitted). As indicated earlier, she has been proposed, by Mr Tranmere, as a possible supervisor of any time which X spends with her father in the short to medium term.
In addition, Mr Tranmere himself filed a further lengthy affidavit. Annexed to this affidavit was a brief medical report from Mr Tranmere’s doctor, Dr O of (omitted). He reported that the father had been his patient for the past eighteen years, during which time he had never treated him for any psychiatric illness.
As previously indicated, one of the factual controversy arising in this case, concerns the quality of the father’s relationship with his three older children and the nature of his relationship with their mother. In this context, Mr Tranmere filed an affidavit of Ms B and provided a letter from the principal of the (omitted) Primary School, which is the school attended by A, B and C.
This letter reports favourably on Mr Tranmere. For her part, Ms B asserts that she is on friendly terms with her former husband, whom she deposes is closely involved with the three children concerned, who are happy to see their father regularly, on alternate weekends and for half of each school holiday period. Ms B speaks highly of Mr Tranmere as a parent.
On 13 February 2014, when the case returned to court, the positions of the parties remained polarised. In these circumstances, it seemed to me to be appropriate that there be a family assessment report prepared sooner rather than later, which should investigate the best means by which to re-introduce X to her father.
In this context, the parties agreed that Ms M, psychologist was an appropriate expert to carry out such a report. I was also given to understand by the parties legal representatives that Ms M could complete the report relatively quickly.
In these circumstances, I made the following order:
“1. The parties and each of them do all such things as may be reasonably required to enable a family assessment to be carried out by Ms M with respect to the competing applications for parenting orders before the Court, particularly the means by which the father and child may have a meaningful level of relationship with one another, with the costs of such assessment and the report arising from such assessment to be borne equally by the parties.”
This order has not been complied with. At best, the parties had a misapprehension about Ms M’s availability. At worst, I was misled about how quickly the report could be obtained. At any event, no steps were taken to bring the matter back to court expeditiously, so that the issue of the family assessment report could be revisited.
On 13 February 2014, I had gone to some lengths to indicate to the parties how important and necessary I regarded a family assessment report to be in this case, given the significant allegations of parental incapacity made by each party and the incontestable fact that X, a child of tender years, had not seen her father for a significant period of time.
Accordingly, one of the preliminary issues arising in the case concerned the appropriate mechanisms through which X could be re-introduced to her father. It was also self-apparent that the mother was likely to be highly anxious about such a process.
In addition, potentially, if an order was made for X to spend time with her father, she would have to pass between two households which strongly mistrusted one another. I was concerned at the possible psychological implications of this for X.
In my view, these factors militated in favour of a family assessment report being obtained expeditiously. Indeed, Ms Cleaver’s position was predicated on the basis that, before any consideration was given to X spending any form of time with her father, it was imperative such a report be obtained, as well as a psychiatric assessment of Mr Tranmere.
In all these circumstances, it is deeply disappointing that the original order, in respect of the appointment of Ms O to prepare the report, has not been facilitated and it is only months later that the omission has been drawn to the attention of the court.
On 13 February 2014, Mr Tranmere was anxious to make some progress in terms of his reintroduction of X. The mother’s position was that if there was to be any such periods of time, they should be of short duration and subject to rigorous professional scrutiny.
At this stage, issues to do with distance and the paucity of facilities in remote rural South Australia raised their head in the proceedings. The father’s position was that the obvious place for him to spend time with X was in (omitted), where she lived.
There is no professionally run contact centre in (omitted) and Ms Cleaver was not prepared to countenance any lay supervisor, certainly not one associated with the father. She was not able to suggest any person in particular.
The nearest professionally run children’s contact centre is in (omitted), approximately 280 kilometres from (omitted). The mother was concerned about the expense of having to travel to (omitted), given that she is not apparently in a strong financial position.
In these circumstances, and with some reluctance, but on the basis that Ms M’s report was likely to be to hand within the period envisaged by the adjournment, I made the following orders:
“2.    The parties each enrol at the (omitted) Children's Contact Centre to assess their suitability to take part in the supervised access program as soon as possible.
3.      The father spend time with the child X born (omitted) 2011 on such occasion as the Director of the (omitted) Children's Contact Centre or his/her nominee can accommodate the parties subject to the following:
a. the father have three periods of supervised time, one session per month which is not to exceed two (2) hours in duration;
b. each period is to be subject to the supervision of the Director of the Centre or his/her nominee;
c. the visits are to be at the expense of the father;
d. the father provide the sum of $120.00 to assist the mother with her transport costs between (omitted) and (omitted) return with the sum to be provided to the mother or her nominee 7 days prior to the date scheduled for each visit; and
e. after three visits the father is to obtain a report from the Director of the Centre regarding the children’s reactions to the visits.
4.      Further consideration of the matter is adjourned to 4 June 2014 at 2:15pm for further directions.”
One of the rationales of these orders was that there would be some professional and objective assessment of how X interacted with her father and this regime would take place in an environment which was objectively safe and secure for X and in which the mother, in theoretical terms, could have confidence.
At this stage, it seemed to me to be prudent to proceed cautiously and with some sensitivity, so far as Ms Cleaver’s anxieties were concerned, notwithstanding the very significant logistical constraints created by the regime in question, not the least of which was the distance to be travelled. The order that the father provide the sum of $120.00 for travel expenses was an attempt to alleviate some of the problems arising.
For reasons, which have not been satisfactorily provided to me, prior to the adjourned date, it was only possible for one supervised visit to occur, which was scheduled for 17 April.
On 2 June 2014, the mother filed two further affidavits in the proceedings. The first was from her father, Mr C; the other was an affidavit sworn by herself. In this latter affidavit, she denied the criticisms made against her by the father, particularly in respect of issues relating to the care of Y.
In addition, the mother raised allegations relating to inappropriate sexual dealings, which she alleged had occurred between the father, on the one hand, and A, B and C on the other. It was alleged that the father had showered with the children and become sexually aroused. It was also alleged that he slept in the same bed, whilst naked, with the children, during contact visits.

These incidents were alleged to have occurred in 2010. Ms Cleaver deposed that in March of 2014 she had alerted the child protection authorities via the telephone of these matters. The father denies the allegations in question and queries the bona fides of the mother in raising the matters, at the stage which she has done so.
It is also Ms Cleaver’s evidence that she believes that C has a knowledge of sexual matters, which is not congruent with her level of maturity. It is clear that Ms Cleaver wishes the court to draw a sinister inference that this knowledge can have only come from Mr Tranmere.
As a consequence of these matters being raised in affidavit, I directed that Ms Cleaver file a formal Notice of Risk, so that the incidents in question could be referred to the appropriate authorities for investigation.
Given that only one supervised visit had occurred and the scope of the matter had increased in gravity the proceedings were adjourned until early July, following the appointment of the independent children’s lawyer, warranted by the abuse allegations.
In the notice subsequently filed, the mother alleged that the father had paedophiliac tendencies and had crossed boundaries with A, B and C. As such, it was asserted that X was at risk of physical, psychological and sexual abuse and serious neglect, if she spent any time with her father.
In her affidavit of 2 June, the mother has also accused the father of raping her on two separate occasions in November and December of 2010, when she was in an advanced state of pregnancy with X. She asserts that she was fearful of suffering a miscarriage, as a consequence of this violent episode and attended upon her doctor.
As yet, I have not been provided with any report from the medical practitioner concerned and, as far as I know, no complaint has been made to the police in respect of the incidents. Ms Cleaver asserts that she was ashamed and embarrassed about the assaults in question, which is why she did not raise them earlier.
These obviously very serious allegations were the principle catalyst for the appointment of Ms C, as independent children’s lawyer, although the significant and apparently escalating level of conflict between the parties was also a factor. The issues of sexual abuse were also matters directly relating to the safety of X and, as such, the court was duty bound to respond to them proactively by taking its own steps of investigation.
As a consequence, I directed that the Department for Education & Development (Families SA) provide documentary evidence to the court in respect of its investigation of the notification in question, pursuant to the provisions of section 69ZW of the Family Law Act. In addition, the Department was invited to intervene in the proceedings, an invitation which it has subsequently declined.
On 22 June 2014, Ms C issued a subpoena directed to Dr A, the mother’s medical practitioner, seeking production of “all notes, files, documents and information” in respect of Ms Cleaver. The subpoena is due to be answered on 12 August 2014.
On 30 July 2014, Ms Cleaver’s solicitor filed a notice of objection on the basis that the subpoena was too wide in its terms and the mother’s medical notes were liable to contain “a significant number of highly private, personal and sensitive records, which are not relevant to the issues in question.”
I am not in a position to rule on this objection as yet. Neither the mother nor her solicitor has inspected the file in question and accordingly no attempt has been made to identify documents asserted to be irrelevant to these proceedings.
Once this has been done, it will be necessary for me to make a ruling. Necessarily, this is likely to require me to read the documents. It may be the case that some aspect of the records (or absence thereof) is relevant as being corroborative or otherwise of the mother’s complaint of rape.
The father has responded in respect of the allegation of rape, which he denies. It is his case that the mother was anxious to reconcile with him, in the early part of 2011, following their separation in later 2010. In this context, he has quoted verbatim the content of text messages, reportedly sent to him by the mother, after the alleged rape, in which she professes great love and affection for him, which he asserts are not congruent with the sexual assault alleged.
It is the implication of much of the father’s case that the mother is currently malignly motivated against him because she perceives that he has spurned her as a lover and has allegedly abandoned X. In these circumstances, he asserts that the mother is motivated by a need to satisfy her feelings for retribution against him, by denying him a relationship with X.
Families SA have now completed their investigation into the matters raised by Ms Cleaver and has found the notifications of child abuse to be unsubstantiated. Prior to December 2013, the Department notes that there was a minimal level of involvement of Families SA with the family. The relevant notifications, which the Department has investigated, occurred in December 2013 and May of 2014.
In the course of its investigations, into these matters, case workers at Families SA interviewed Ms B; the father; the principal of the (omitted) Primary School; and C.
In its report, dated 2 July 2014, Families SA reported that Ms B said:
“... denied that any of the allegations were true and believed the allegations had been made because of the father’s Family Law Court case in regard to his other child. When asked, the mother said that the father disciplines the children appropriately without intimidation or physical force. The mother said that the father may have showered the children when they were very young, however, she did not believe he would have been showering with them past this point. The mother said that the children love spending time with their father and that she has a good enough relationship with them that they would tell her if they had any concerns or did not feel safe.”
In interview, C reported to Families SA that:
“C said she loves spending time with her father and spoke about a number of activities they do as a family. C did not disclose any physical discipline and said if she doesn’t do her chores; her father will tell her she needs to do them. C did not have any worries about spending time at her fathers and there was nothing she could identify that made her feel unsafe or bad at her father’s.”
The principal of the children’s school described C, A and B as well behaved children, whose parents attended school functions together. She had no concerns about C displaying sexualised behaviour or having an age-inappropriate knowledge of sex or sexual acts.
The allegations of sexual abuse, which lead to the appointment of the independent children’s lawyer and the involvement of Families SA, delayed the case, which was originally scheduled to return to court on 4 June 2014, following three periods of supervised time at the (omitted) Children's Contact Centre.
There were other delays. A hearing scheduled for early July was vacated due to the unavailability of the mother’s counsel. Regrettably, Ms Cleaver herself was not able to attend on the rescheduled hearing date, due to a commitment to babysit her children and a friend’s child during the school holidays. In these circumstances, further supervised visits were ordered to take place in June of 2014 and the proceedings ultimately returned to court on 4 August 2014.
I have now been provided with a report from the (omitted) Children's Contact Service report.[4] This deals with supervised sessions of time, between Mr Tranmere and X, which occurred on 17 April; 14 June; and 28 June 2014.
[4] See affidavit of (omitted) filed 10 July 2014
The report, compiled in respect of the first visit, is about half a page in length. It is generally positive in respect of the interaction observed between the father and X. Initially, X was reticent to involve herself with the father and went to play in a dolls house with the support worker.
Thereafter, Mr Tranmere is described as gradually entering the circle of play and beginning to initiate conversation with X, who smiled at him and began to include him in her play. Later, the child was described as having initiating physical contact with the father by touching his arm and shoulder, during play.
During this session, the report notes that Ms Cleaver was reluctant to leave the contact centre. As a consequence, during the session, a support worker returned to her to reassure her that the session was progressing well. During the session, Mr Tranmere showed X a photo of himself holding X, when she was a baby. X pointed to the photograph and identified Mr Tranmere as “dad”.
The report in question is also generally positive about the nature of the second session, which occurred on 14 June. X and Mr Tranmere played together and talked about issues related to pets, toys and how to play games. X was observed to initiate conversation with Mr Tranmere and look intently at him. Father and child were observed to “laugh frequently while playing in the garden”.
The third session, ordered for 28 June, did not occur. The reason for this was that Ms Cleaver informed the contact centre workers that X had said to her (the mother) that she (X) had been too scared to inform workers that she wanted to leave the session with Mr Tranmere. Thereafter X is reported to have refused to separate from her mother. During this process, Ms Cleaver is reported to have repeatedly said to the child “you don’t have to do anything you don’t want to do.”
At this stage, the case co-ordinator asked to speak to Ms Cleaver in private to see if some strategies could be agreed upon to facilitate X spending time with her father, as had been ordered by the court. Ms Cleaver declined this invitation, as she reported she would be concerned that X would be taken to Mr Tranmere, if she left the room. The session was cancelled a short time later.
The team leader of the (omitted) Children's Contact Service, Ms S, provided the following summary of the centre’s involvement with the family:
“Ms Cleaver came to the first two sessions well prepared with food and drink for X. Mr Tranmere came to the session well prepared with age appropriate toys. Mr Tranmere was respectful of X’s personal space during the sessions and allowed X to settle into activities before joining her. Mr Tranmere was attentive to X’s needs as he offered food and drinks. Mr Tranmere allowed X to select and lead the play activities. X was hesitant at first; however X’s willingness to initiate physical contact and conversation with Mr Tranmere indicated that attachment was forming during the sessions. Due to X’s refusal to engage in the third session, this attachment was not given the opportunity to develop further.”
Ms Cleaver has filed a further affidavit, in which she sets out her perspective on the supervised visits, which is very different to the report of Ms S.[5] It is her position that X was in total despair and was crying uncontrollably prior to the first session. Nonetheless, Ms Cleaver asserts that she encouraged X to go through with the visit. After the visit, Ms Cleaver alleges that X told her that she did not wish to return to the centre and see the person she referred to as the Mr Tranmere man.
[5] See affidavit of the mother filed 14 July 2014
Following the visit of 17 April 2014, Ms Cleaver describes a child who was significantly traumatised by the visit and whose behaviour had changed abruptly. Ms Cleaver alleges that X has had nightmares; has wet the bed; is reluctant to sleep alone; has refused food; become very quiet and withdrawn; and has generally exhibited a lack of confidence.
It is the import of Ms Cleaver’s affidavit that these behaviours have intensified following the second visit. It is her evidence that she, in effect, forced X to go through with the first two supervised sessions but she was not prepared to do so on the third occasion. She takes issue with the contents of Ms S’s report and categorises it as being a glib and selective report of what happened, which is misleading in nature. By necessary implication, she has no confidence in the (omitted) Children's Contact Centre.

The current applications

In an affidavit filed with the court on 31 July 2014, Mr Tranmere has set forth his proposals for the next step in the process of re-introducing X to him. He believes that the best option is that he spends time with X, at the home of his sister, Ms D, in (omitted). In the alternative, he proposes a continuation of the supervised contact regime at the (omitted) Children's Contact Centre.
In support of his primary position, the father has filed a further affidavit from Ms D. Ms Cleaver is vehemently opposed to Ms D providing the supervision in question. She refutes any suggestion that X is familiar with Ms D’s home and has any affectionate recollection of her.
As Ms D was present in court, on 4 August 2014, I invited Mr Boehm to confer with her, so that he could form some view as to her suitability to supervise time between the father and X, in what can only be considered to be very difficult and conflicted circumstances. I also indicated that I proposed to hear some evidence from Ms D and envisaged that she would be cross-examined by counsel for Ms Cleaver. This process occurred.
My impression of Ms D, from the witness box, was of a pleasant and sensible person. She is an experienced (occupation omitted), particularly in the field of (omitted). She worked on (omitted) at the (employer omitted), where she was required to (duties omitted).
I accept that Ms D herself is an experienced parent, who has successfully raised four children, whose ages range from seventeen to twenty-five years. I also accept that her home in (omitted) is a comfortable one, which has appropriate facilities for a child of X’s age.
Ms D conceded that she had not seen X for a significant period of time. She also conceded, under cross-examination from senior counsel for the mother, that she did not hold Ms Cleaver in high regard as a consequence of what she regarded to be her false allegations against her brother.
Ms D also conceded that she was scared of the mother, particularly at the prospect that she (Ms D) might herself be the subject of some form of allegations. In all these circumstances, it was the submission of counsel for the mother that Ms D was not a suitable person to supervise time, given her animus for Ms Cleaver.
When questioned, Ms D conceded that X was highly likely to become upset, during the process of coming into contact with her brother. She was asked what she would do in such difficult circumstances. She indicated that she would telephone Ms Cleaver, although she did not currently have her contact details. She also indicated that she believed that she had sufficient authority over her brother to re-direct his behaviour, if he behaved inappropriately towards X.
Ms D is closely aligned with her brother’s position in this case and is familiar with the complex web of allegations and counter-allegations, which have been raised in it. She is, in my assessment, an intelligent person. She readily conceded that the role she proposed for herself was a very difficult one. However, her assessment was that she could handle it. With the greatest respect for Ms D, I am concerned that she may have under-appreciated the level of antagonism in the case and its inherent complexity.
As previously indicated, it was Mr Boehm’s submission that Ms D was an appropriate person to supervise any periods of time Mr Tranmere was permitted to spend with X. I do not think that it could be said that Mr Boehm’s endorsement was unequivocal. However, from his perspective, it was the most viable option open at the present time.
During the process of the hearing, on 4 August, Ms Cleaver proposed, through her counsel that her mother Ms L supervise any time occurring between X and her father. The suggested location for this time was the child care room at the (omitted) Church in (omitted). This room would provide comfortable and warm accommodation, but would not be subject to any external scrutiny.
In support of this option, I was provided with an affidavit sworn by Ms L on 16 December 2013. It had not previously been filed and the prospect of Ms L being a supervisor had not earlier been canvassed, as far as I recall, in the case prior to 4 August, certainly not in December 2013.
In any event, Mr Tranmere is also vehement in his opposition to the mother’s proposed supervisor. He fears that Ms L will not be impartial and, as a consequence, he may be the subject of further unwarranted allegations of misconduct. I can understand why he would make such a submission, given what has transpired in the proceedings to date.
Ms L is not prepared to be the conduit for the delivery and return, of X, with Ms D, in the context of the latter being the court ordered lay supervisor. Accordingly, by necessary implication, if this was to be the preferred option, Ms D would have to deal with Ms Cleaver directly for any necessary exchange of X. At this stage, on the basis of the evidence available to me, I have considerable reservations about the capacity of the two women to manage this.
Interestingly, I was told that Ms L would be comfortable delivering X, on one occasion each month, to the (omitted) Children's Contact Centre. The potential benefit of such a course would be that it would remove the mother from the immediate interface between the contact centre and X.
On 4 August 2014, it remained my view that it was imperative that a family assessment report be obtained in this matter sooner rather than later. On this occasion, the parties were in dispute as to who should be commissioned to prepare the report.
In this context, a number of suitably qualified experts were put forward. Their availability to undertake the report in question ranged from mid-August until early December. In all the circumstances, particularly the previous level of delay, I opted for the most expeditious report writer.
Accordingly, a family report is likely to be to hand, in this matter, towards the end of September. I am hopeful that this report will provide some independent assessment of the parental capacity of each of the parties and particularly how and in what circumstances X can pursue some form of relationship with her father.
In my view, the extent of this timeframe is a significant factor in determining what the next step to be taken is. The report will be to hand reasonably quickly. Although necessarily many so called contact orders have an experimental quality about them, particularly at the interim stage, it is important that the court does not over-reach and so imperil the prospect of progress being made in future.

The legal principles applicable

As these proceedings arise at the interim stage, the court has not seen either party being subject to cross-examination. As a consequence, it cannot make its own direct assessment of their respective level of credibility. In this case, the evidentiary positions of the parties and their respective supporters are diametrically opposed.
Interim hearings do not determine long term arrangements for children. That is the function of final hearings. However, the same principles apply at both the interim and final hearing stage. They are contained in Part VII of the Family Law Act 1975, which is the part of the Act dealing with children.
In deciding whether to make any particular parenting order, in relation to a child, the court must regard the best interests of the child as the paramount or most important consideration [Family Law Act section 60CA].
The matters which the court must take into account, in deciding how a child’s best interests are to be served, are set out specifically in the Act in section 60CC.

Section 60CC creates two classes of considerations which apply to the court’s determination of how a child’s best interests will be determined in proceedings before it – primary considerations and additional considerations. There are two primary considerations, which are set out in section 60CC(2)(a)(b) namely:
(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.
Prior to recent legislative amendments, these considerations were not formally ranked in regards to one another. They have been referred to, in a number of decisions of the Family Court, as “twin pillars”, the importance of which depends on the circumstance of the case concerned.
However, as a result of the insertion of section 60CC(2A) into the Act, the court is now directed, in applying the primary considerations “to give greater weight” to the primary consideration relating to the need to protect children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
These recent changes to the Family Law Act, relating to family violence and abuse, are significant ones. The key amendments are designed to “prioritise the safety of children in parenting matters”.[6]
[6] See Supplementary Explanatory Memorandum (Senate) Family Law Legislation Amendment (Family Violence and Other Measures) Bill 2011
However, these considerations still need to be considered within the overall framework of Part VII, particularly its underlying principles and the legislatively mandated objects or aspirations of the Act. These are set out in section 60B and are illuminative of the dilemma which this case throws up.
These speak of children’s rights to know and be cared for by both their parents and to regularly spend time with each of them, regardless of the nature or duration of the relationship between their parents. The legislation recognises the fundamental entitlement of children to have a relationship with their biological progenitors.
Children also have a right to be safe and to be protected from coming to harm, both in a physical and a psychological, as a consequence of being exposed to neglect, abuse or family violence. In a case, such as this one, the parties concerned approach parenting issues, to do with X, from these different aspects.
In this case, it is the mother’s position that the court needs to give pre-eminence to the need to protect X from coming to physical or psychological harm, as a consequence of being exposed to some form of neglect or abuse, arising from what she asserts is Mr Tranmere’s violent disposition and lack of insight in what it is to be a responsible parent.
On the other hand, it is Mr Tranmere’s perspective that it is fundamentally in X’s best interests that she begins to have some form of relationship with him and she will benefit, in myriad ways, from knowing her father, who will provide her with love and a sense of identity, as she grows into maturity.
It is the underpinning of his position that the early years of childhood are crucial to the development of an intimate and comfortable relationship between parent and child. As such, from his point of view, time is crucial and much has already been lost.
Other specific criteria, relating to how the court is directed to consider how the best interests of any children concerned may be served, by any order which is made, are set out in section 60CC(3). There are fourteen such criteria, which are categorised as being additional considerations.
Pursuant to section 60CC(3)(m) the court is empowered to have regard to any other fact or circumstance, which it considers relevant. This ensures that the infinite variety of individual children’s circumstances may be addressed in any order which the court makes.
Although the court is directed to consider many factors, in discharging its duties under Part VII of the Act, the best interests of the children concerned remain paramount. The court’s duty is to deliver individual justice, for the child affected, in every case.[7]
[7] See B v B: Family Law Reform Act 1995 (1997) FLC 92-755
In this sense, the court’s inquiry is a “positive one tailored to the best interests of the particular children and not children in general …”[8] As such the various factors, in section 60CC, are inclusive but not exclusive of one another.[9]
[8] See B v B: Family Law Reform Act 1995 (ibid) at 84,220
[9] See Russell & Russell & Anor [2009] FamCA 28 at [141] per Ryan J
Given the importance, which the applicable legislation places on the co-involvement of parents in their child’s life and development there is a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her [Family Law Act 1975 section 61DA].
The presumption relates to the allocation of parental responsibility, not the allocation of time which a child spends with each of his or her parents.
The presumption of equal shared parental responsibility is rebutted if it is found, on reasonable grounds, that one of the child’s parents has abused the child concerned or exposed him or her to family violence [section 61DA(2)].
The presumption is also rebutted if evidence is provided which satisfies the court that it would not be in the child’s interests for his or her parents to have such equal shared parental responsibility for the child concerned [section 61DA(4)].
Significantly, at the interim stage, the court has a discretion not to apply the presumption if it considers it would not be appropriate to do so in all these circumstances prevailing [section 61DA(3)].
In the current case, it is axiomatic that the parties concerned have no parental relationship with one another, let alone a functioning one. At present each asserts that the other is a malign influence in X’s life – from Ms Cleaver’s perspective, Mr Tranmere is a poor parental role model because of his violent conduct – from Mr Tranmere’s perspective, Ms Cleaver is intent on ensuring that he has no relationship with X for reasons to do with the satisfaction of her own emotional needs.
In these circumstances, it is clearly inappropriate for the presumption of equal shared parental responsibility to be applied. Accordingly, it falls to the court to determine what it considers to be the best outcome for X, at this stage, according to the various considerations contained within section 60CC, bearing in mind the truncated nature of the hearing available, at the interim stage, which limits the court’s capacity to reach concluded findings of fact.
The mother has raised a raft of allegations against the father, asserting that he is a violent person – both to her, to X and to his other children. She has also asserted that he has used his own children as objects for his sexual gratification. These are extremely serious allegations, which if true have the potential to be extremely deleterious for the child.
Abuse, in respect of a child, is defined by section 4(1) of the Family Law Act. It means:
(a)     an assault, including a sexual assault, of the child; or
(b)     a person (the first person ) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is unequal power in the relationship between the child and the first person; or
(c) causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or
(d)     serious neglect of the child.
The thought that any parent would use a child of tender years, either violently or as a sexual object, is abhorrent to all right minded persons. As such, one’s natural tendency is to disbelieve such assertions. However regrettably, as any analysis of notifications to welfare authorities in this country indicates, the actuality is otherwise. Sexual abuse and violence towards children happens often and is not confined to any particular social group or class.
Accordingly, given the structure of the Act, the court is duty bound to regard allegations of sexual abuse and violent behaviour extremely seriously. However, in some cases, allegations of sexual abuse and violent behaviour occur in the aftermath of relationship breakdown or where the parents concerned communicate poorly, if at all, because of antipathy and suspicion.
For obvious reasons, such circumstances provide fertile ground in which words or actions can be misconceived or misunderstood. Regrettably, it is also not unknown for allegations of sexual abuse and violent behaviour to be made for tactical or mischievous reasons.
As Fogarty J said in N&S and the Separate Representative:
“…courts must be aware that not all allegations of sexual abuse are true. False allegations may be made either by parents acting in good faith, as a result of a misperception of information about their child, or by parents deliberately fabricating allegations in order to gain an advantage in proceedings. Ambiguous events often have an innocent explanation.”[10]
[10] See Per Fogerty J in N & S and the Separate Representative (1996) FC 92-655 referred to in W & W (supra) at paragraph 95
In this case, the relevant authorities have investigated the allegations of sexual misconduct, involving Mr Tranmere’s three older children and found them to be without substance. He is characterised, by his former wife, to be a dedicated and blameless parent. This is significant evidence, but is as yet untested.
The allegations made by Ms Cleaver regarding Mr Tranmere’s rape of her and his violent and insensitive attitude towards X must also be regarded as serious. However, as yet, the court is not in a position to make positive findings, one way or the other, about these matters, which are essentially uncorroborated and arise in difficult and highly controversial proceedings. The allegations are also categorically denied by Mr Tranmere.
This is where the dilemma for the court potentially arises. For self-apparent reasons, it is likely to be detrimental for X to be placed in a situation, in which she is cared for by a person who lacks parental insight, has a propensity to be violent and sexually exploitative of children and has committed a sexual assault on her most significant emotional figure.
However, if these allegations turn out to be exaggerated or worse still fabricated, it may be damaging to X to be deprived, for an unduly prolonged period of time, of the opportunity to have a caring parenting relationship with a person who loves her.
In these circumstances, it is the responsibility of the court, both at the interim and final stage, to make some form of assessment of the risk implicit in both such scenarios and put in place precautions or safeguards, which are proportionate to the degree of risk so assessed.
Again, given the limited nature of evidence available at the interim stage, this task is usually more easily accomplished at the final hearing stage, where there is more evidence available, including invariably an independent assessment of the family concerned. Accordingly, at the interim stage, the court is likely to take a cautious approach.
In M & M, the High Court formulated the test, which has been referred to as the “unacceptable risk test” as a standard to achieve a balance between the risk of detriment to a child from sexual abuse (and by necessary implications other forms of abuse) and the possibility of benefit to the child from parental access. The High Court said as follows:
“To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.”[11]
[11] See M & M (1988) FLC 91-979 at page 77,081
In W and W [Abuse allegations: unacceptable risk][12] the Full Court summarised a number of authorities dealing with abuse allegations. In particular, the Full Court approved the comments of Fogarty J in N & S and the Separate Representative[13]:
“Thus, the essential importance of the unacceptable risk question as I see it is in its direction to judges to give real and substantial consideration to the facts of the case, and to decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm to the child. Thus, the value of the expression is not in a magical provision of an appropriate standard, but in its direction to judges to consider deeply where the facts of the particular case fall, and to explain adequately their findings in this regard.
In asking whether the facts of the case do establish an unacceptable risk the Court will often by required to ask such questions as: What is the nature of the events alleged to have taken place? Who has made the allegations? To whom have the allegations been made? What level of detail do they involve? Over what period of time are the events alleged to have occurred? What are the effects exhibited by the child? What is the basis of the allegations? Are the allegations reasonably based? Are the allegations genuinely believed by the person making them? What expert evidence has been provided? Are there satisfactory explanations for the allegations apart from sexual abuse? What are the likely future effects on the child?
This is not a catalogue of the correct questions, but a reminder that it is questions such as these which are required to be considered in deciding whether an unacceptable risk may be shown. The weight to be attached to the various answers to the relevant questions will inevitably vary from case to case. But it is essential that questions like these be asked.”
[12] W and W [Abuse allegations: unacceptable risk] [2005] FamCA 892
[13] See N & S and the Separate Representative (supra) at page 82,713-82,714
The allegations, in this case, arise in the context of vitriolic and highly contested proceedings. The more serious of allegations have only been raised comparatively recently. They are each vigorously denied. Independent corroboration is extremely limited. Significant aspects of the allegations have been discounted by the relevant authorities. However, up to now, it has not been possible for the court to conduct its own exhaustive inquiries into the various matters.
In all these circumstances, particularly given the extremely limited nature of X’s relationship with her father [section 60CC(3)(b)] and her tender age [section 60CC(3)(g)], it is appropriate that the court take a cautious approach to the case. Indeed, to Mr Tranmere’s credit, he recognises that there must be supervision of his time with X.
Time which is subject to rigorous and unnecessary supervision or which is extremely limited in its extent is not likely to provide an optimal environment in which to develop and extend a parent/child relationship. Unnecessary supervision may create an environment for parental interaction which is stilted and uncomfortable.
In W & W,[14] the Full Court spoke of a tension arising between the protection offered to a child by supervised contact and the potential detriments occasioned by the artificiality and limitations arising from such supervision, which can impact on the emotional wellbeing of the child concerned by creating an unwarranted curtailment of his or her parental relationship. Supervision has limitations.
[14] W and W [Abuse allegations: unacceptable risk] [2005] FamCA 892
It may not provide sufficient time for the fostering of an appropriate parental relationship. It may prevent the parents concerned managing their own parenting relationship with one another. It may at best be a temporary or stop-gap measure. In addition, there may be a limit to potential supervisors, who have an understandable wish to get on with their own lives and not be tied indefinitely to a requirement to provide supervision.
Significantly, the parent who is subject to supervision may be resentful about it and this may, in turn, impact upon how or she interacts with the child concerned. As such, it may act as an impediment to the child concerned feeling at ease, in the presence of the parent being supervised.
However, in cases where there is a high level of suspicion and apprehension in the residential parent’s household, supervision may be the only viable outcome, because otherwise excessive anxiety on the primary caregiver’s part may adversely impact on that parent’s ability to care for the child concerned. This exercise is part of the court’s task in assessing the magnitude of the risk involved and whether it is unacceptable.
In W & W[15] the Full Court said as follows:
“We appreciate that the decisions in these cases have the potential for long term consequences for a child, and they require very careful consideration. We do not think it is appropriate or practical to set guidelines as to when supervised contact could or should be ordered, or whether such contact should be in a professionally run contact centre or supervision by private arrangement. The latter, which was deemed appropriate in the circumstances of this case, affords a potentially longer term solution which is likely to afford the opportunity for enjoying more realistic and relaxed parenting time between a parent and child.”
[15] W and W [Abuse allegations: unacceptable risk] (Supra) at paragraph 115
In A v A[16] the Full Court of the Family Court said as follows:
“The first enquiry is whether there is objectively an unacceptable risk. If there is the Court must take steps proportionate to the degree of risk. If there is not, the Court may then need to consider whether the residence parent has a genuinely held belief that such a risk exists and whether that will have a significant impact on that party’s capacity as the resident parent and so impinge on the best interests of the children. The Court then needs to take steps proportionate to that circumstance.”
[16] A v A (1998) FLC 92-800 at 87,996
In many cases, there will be an element of overlap between whether the anxiety of a parent providing primary care, about the other parent spending time with the child concerned, is objectively based and whether that parent has a flawed but nonetheless genuinely held view that there is a real risk of harm.
In some other cases, it may be said that these anxieties are either concocted or deliberately overblown, as a pretext to frustrate the other parent’s legitimate desire to spend time with a much loved child. At this stage, I am not in position to un-tease these various possible permutations in the context of the current case.
However, I think I can conclude that, for whatever reason, Ms Cleaver is highly anxious regarding the prospect of X coming into any form of contact with Mr C, no matter how closely supervised it is. In addition, it is not, I think, an improbable hypothesis for me to draw, even at this provisional stage, that she is a person who is particularly prone to anxiety.
Given that she is the undisputed primary custodian of X, this is an important consideration. It is likely to be counterproductive, at this stage, particularly prior to the family assessment, to put in place orders which are likely to intensify Ms Cleaver’s anxiety levels, which in turn, are likely to reverberate with X.
In these circumstances, pending the preparation of a family assessment report, the court must proceed cautiously. Although I was impressed with Ms D, I do not think she can be considered a viable supervisor at this stage, given the possibility of difficulties arising at handovers, which will have to be negotiated directly between Ms Cleaver and Ms D. My view, in this regard, may change following the release of the report, depending on its recommendations.

I also discount the mother’s proposal for the maternal grandmother to supervise time, in a neutral but not otherwise secure location in (omitted). In my view, the intense level of mistrust between the father, on the one hand and the mother and her family, on the other hand, rules out Ms L in this regard. Again, my view may change if further evidence is obtained, particularly from the family assessor concerned.
That leaves the (omitted) Children's Contact Centre. Although the parties have differing views about the success of this intervention thus far, in my view, there are some positive indications arising from it. Ms S considered there were signs of a relationship beginning to form between father and child. I appreciate that, at this juncture, Ms S’s evidence has not been subject to any scrutiny, but nor has the mother’s.
One of the major drawbacks of the Centre is its distance from (omitted). It is an onerous drive for a child of X’s age. However, it is the only option available. It seems to me to be in X’s best interests, at this stage, that there be some conduit, albeit an extremely limited one, by which she can begin to take some steps towards forming an intimate level of relationship with her father.
It also seems to me that, if Ms L is the person nominated to deliver and return the child to and from this process, it will be able to be successfully implemented, from the child’s perspective. She will be removed from the orbit of the mother’s possible distress. It is the court’s expectation that its orders will meet with compliance.
I have no doubt that X will be physically safe within the confines of the Children’s Contact Centre, where she will be able to engage in playful activities, which are appropriate to her age and level of development. The report prepared, in respect of the two visits, which took place, indicates that all interactions between father and child were subject to supervision.
The last time X interacted with her father, prior to the involvement of the contact centre, was in early 2012, when she was around one year of age. The mother asserts that the father was unduly rough with her in his previous interactions with her.
Again, these are not matters currently capable of independent scrutiny. What recollection, if any, X is likely to have of these allegedly unhappy interactions with her father, in her very early infancy, is a matter for professional and expert assessment.
It does, however, appear to be the import of Ms Cleaver’s evidence that she believes that X had no recollection of Mr Tranmere prior to the visits at (omitted), given how X is said to have characterised him to her mother. Again, these are matters which are likely to be revisited at final hearing.
X now has some familiarity with the Centre. Why she has reacted so adversely, to the process of spending time there with her father, as the mother alleges, is unclear to me. The adverse reaction is not explicable on the basis of the report prepared by Ms S. Perhaps, in due course, the family assessor may be able to shed light on the issue.
I acknowledge that there is an obvious level of artificiality about these proceedings, at this stage. I am unable to rule on the central evidentiary issue in the case – is the father a violent and abusive person, who poses a significant threat to X, as Ms R contends or, on the other hand, is the mother a person, who has fabricated claims of abuse, to advance her own malign agenda against him, as Mr Tranmere contends. For obvious reasons, the manner in which this issue is resolved is likely to have significant implications for any regime of time X spends with her father.
Notwithstanding my inability to resolve this central issue, in my view at this stage, it is important that X spends some time with her father. In my assessment, pending production of the family assessment report, the only viable mechanism for this is at the (omitted) Children's Contact Centre, with Ms L being charged to perform the handover to the Centre staff.
I will order that there be one such visit in August, September and October, pending the return of the matter to court in mid-October. I see no necessity to require Mr Tranmere to reimburse Ms Cleaver any travelling funds in these circumstances.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.

I certify that the preceding one hundred and seventy (170) paragraphs are a true copy of the reasons for judgment of Judge Brown

Associate:

Date: 15 August 2014

[2014] FCCA 1827

15 August 2014

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Remedies

Procedural Fairness