Usher & Usher

[2021] FamCA 312

FAMILY COURT OF AUSTRALIA

Usher & Usher [2021] FamCA 312

File number(s):

NCC 1831 of 2020

Judgment of:

CLEARY J

Date of judgment:

4 May 2021

Catchwords:

FAMILY LAW – PARENTING – Application to vary interim orders – Where dates have been allocated for trial – Where the current period of operation of current orders until the matter has been heard and determined would be approximately six months – Where making a change to the arrangements creates a risk of destabilising relationships until there is a basis for changing them permanently – Applications dismissed.

FAMILY LAW – EVIDENCE – Where the provisions of the Evidence Act (Commonwealth) 1995, excluded by Section 69ZT(1), ordered to apply – Where the Court is was satisfied that there were exceptional circumstances which justify the application of the relevant sections – Application of the father granted.

Legislation:

Family Law Act 1975 (Cth)
Evidence Act 1995 (Cth)

Number of paragraphs:

29

Date of hearing:

3 May 2021

Place:

Newcastle

Counsel for the Applicant:

Mr Bithrey

Solicitor for the Applicant:

Aubrey Brown Partners

Counsel for the Respondent:

Not Applicable

Solicitor for the Respondent:

Taperell Rutledge Lawyers

Counsel for the Independent Children's Lawyer:

Not Applicable

Solicitor for the Independent Children's Lawyer:

Legal Aid

ORDERS

NCC 1831 of 2020
BETWEEN:	MR USHER Applicant
AND:	MS USHER Respondent
INDEPENDENT CHILDREN'S LAWYER Other

ORDER MADE BY:	CLEARY J
DATE OF ORDER:	4 MAY 2021

THE COURT ORDERS THAT:

1.The provisions of the Evidence Act 1995 (Cth) excluded by section 69ZT(1) of the Family Law Act 1975 (Cth) shall apply to the issue of alleged abuse of the child Y, born … 2016, NOTING that the Court is satisfied that the circumstances are exceptional, with particular but not exclusive reference to the probative value of the evidence of the mother.

2.The Amended Application in a Case filed 19 February 2021 by the father be dismissed.

3.The Response to an Application in a Case filed 29 April 2021 by the mother be dismissed.

Note:   The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

IT IS NOTED that publication of this judgment by this Court under the pseudonym Usher & Usher has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

ORAL REASONS FOR JUDGMENT

CLEARY J

INTRODUCTION

1. This is an application by the father to vary orders made by consent on 2 October 2020 in relation to two of the parties’ four children:  X, aged 14 years and nine months and Y, just turned five. The other two children are boys aged 12 and seven.

2. The Independent Children’s Lawyer (“ICL”) opposes changes to current arrangements and the respondent mother has accepted and adopted the view of the ICL.

3. Dates in this matter have been allocated for trial on 13 to 16 September 2021. Accordingly, the further period of operation of current orders until the matter has been heard and determined would be approximately six months.

   EVIDENCE

4. The documents relied on in respect of the application were as follows: 

   The Applicant father

   (a)Amended Application in a Case filed 19/02/2021;

   (b)Affidavit of the father filed 5/02/2021;

   (c)Affidavit of the father filed 19/02/2021

   The Respondent mother

   (d)Response to an Application in a Case filed 29/04/2021;

   (e)Affidavit of the mother filed 29/04/2021;

   The Independent Children’s Lawyer

   (f)Family Report dated 18 December 2020;

   (g)A letter by the ICL to the parents.[1]

   [1] Exhibit 1.

   HISTORY

5. The parties separated four years ago in mid-2017 after 12 years of living together and the birth of four children. They are now divorced.

6. In July 2019 there was an incident in the home of the mother involving X and Y. In a Magellan Report dated 14 September 2020 the Department of Communities and Justice substantiated that there was “suspicious indicators of sexually abusive behaviour of X towards Y.”[2]

   [2] Magellan Report dated 14/09/2020, page 8.

7. X moved to live with the father although he had already been spending considerable time with him. The younger three children remained with the mother. The application of the father is to vary the current arrangement for Y and X such that instead of spending each day of alternate weekends from 10.00 am to 6.00 pm on Saturday and on Sunday, Y would spend time from 10.00 am Saturday until 6.00 pm Sunday in parallel with her brothers Z and W, with an additional order that the father be restrained from allowing X to remain in the father’s home from 7.00 pm Saturday until 7.00 am Sunday on the relevant weekends.

8. The mother had formally responded with a proposal for Y to spend overnight time on Thursday night with her father and two brothers contingent on X spending that night in the home of the mother. The mother concedes capacity of Y to spend overnight time with the father. Subsequently, the mother withdrew that proposal. She did so after hearing the views of the ICL[3] and the opinion reported by the ICL of X’s counsellor.

   [3] Exhibit 1.

9. The ICL had spoken to X about the proposals of each of his parents. He is reported to have continued to express the view that current arrangements were alright. X expressed discomfort about spending the night in his mother’s home or in the home of a friend or family member (in order to accommodate an alternate Thursday night or Saturday night sleepover for Y in the father’s home). X confirmed he would comply with orders. The concern of the ICL was that such a change could be disruptive and destabilising.

10. The ICL’s letter[4] reveals that X’s counsellor spoke to him about each party’s respective proposals although it is unclear when. His views were unchanged from the views expressed in the family report interviews on 9 November 2020. At that time X expressed the view to the family consultant that after separation of his parents in 2017 he did not see his father for a long time.[5]  When he did, he began to spend more time with his father which he perceived as something his mother was unhappy about and as a result was punitive towards him in a variety of ways.[6]

    [4] Exhbit 1.

    [5] Family Report by Dr B dated 18/12/2020, par 174.

    [6] Family Report by Dr B dated 18/12/2020, par 175.

11. X denies any wrongdoing in respect of Y, who was just over three years of age when the alleged incident of abuse took place. A few months after the alleged incident in July 2019 X moved to live with his father and has done so since.

12. In about 2020 X’s school became aware of the allegations raised by the mother about X and Y. Restrictions were imposed on his interactions with the junior school. Later that year the restrictions were lifted. It is apparent that X drew considerable relief and comfort from that outcome.[7]

    [7] Family Report by Dr B dated 18/12/2020, par 181.

13. X reported his sessions with his counsellor himself as positive. A joint session with his parents led to an expressed mixed response: “Mum lied to me and the counsellor about the allegations”.[8]

    [8] Family Report by Dr B dated 18/12/2020, par 182.

14. X expressed his wishes to the family consultant to continue living with the father and also that he was happy to spend time with the mother for a few hours and enjoys doing activities with her.

15. By the date of the family report interviews the consent orders made on an interim basis had been in place for about six weeks. X liked spending time with his two younger brothers when they spent time with the father and himself. He wanted to see Y more at the father’s house but he was happy for current arrangements to continue, “I like it how it is.”

16. It is apparent that X has experienced upheaval and emotional tumult. He knows he is accused of abusing or hurting his sister Y. His relationship with his mother endures but it is affected by his expressed beliefs that the mother misunderstood his actions and has subsequently told lies about him. X is content to live with current arrangements until the dispute between his parents is finalised.

17. In my view, to change the arrangements such that the father on his own application is restrained from having X at home from 7.00 pm Saturday to 7.00 am Sunday during which period Y would stay with her father creates a risk of destabilising relationships between:

    (a)The mother and X if X is ordered to stay with her;

    (b)The father and X over his own proposal to exclude X overnight;

    (c)X and Y - the risk being that X may begin to hold Y responsible for his exclusion from his own home although intellectually he would know that it was not so; and

    (d)If X were ill and unable to stay elsewhere on a Saturday night Y would have to return home.

18. I conclude that if X is required to leave his home in the way his father envisages there could be just such a destabilising effect. That is, there is a risk of X feeling humiliated and rejected. There is a risk of heightened conflict if X declines to stay with the mother overnight but arrangements are made for him to stay elsewhere not known to the mother.

19. If I were to accept the mother’s evidence, Y is reacting with distress to the movement between households. Although the father reports that she is happy and contented when with him. Both things could easily be true. If the mother is not entirely comfortable with arrangements for X, her own anxiety about where X is could affect Y.

20. The aim of this exercise is to promote the best interests of all subject children.

21. I take into account that X’s counsellor has “not undertaken counselling with X for some time”. I assume because of her opinion that “counselling will be more valuable to X once Court proceedings are finalised”.[9]  I do not take into account the views of X’s counsellor on Y starting overnight time. The counsellor having not met Y or the other two siblings.

    [9] Exhibit 1.

22. I further take into account that if the mother achieves the outcome she is pressing for in the trial, namely, a finding that X abused Y, the final orders could involve no overnight time for Y in the father’s home for as long as X lives there. If the father achieves the outcome he is pressing for, that there is no risk of harm associated with X being with Y, the orders could involve a wide range of outcomes for all children.

    CONCLUSION

23. The safest outcome, it seems to me now, is to keep current arrangements stable until there is a basis for changing them permanently. Once those orders are made, all children will have the orders explained to them and their questions answered.

24. In summary, I accept that five changeovers on alternate weekends is not ideal. It may be contributing to Y’s reported behaviour of crying and resisting in her mother’s home. Although they have not been able to do so to date, the parties have it in their own hands to alter arrangements set out in the October 2020 interim orders. They did agree, as part of those orders, to equally share parental responsibility. For instance, they could omit one of the weekend days Y spends with the father or extend X’s time with the mother on Sundays to 6.00 pm to minimise changeovers. However, if the parties cannot agree on any moderation of the orders, the orders will apply.

25. I accept that Y has probably asked to stay overnight with her father and is conscious of differential treatment with her two older brothers.

26. It is an emotionally precarious situation but current orders are working for the children although only just.

27. On that basis I conclude that the applications of both parents should be dismissed. With respect to the application of the father with reference to s 69ZT(3) of the Family Law Act 1975 (Cth) I do consider that there are exceptional circumstances which would justify the application of the rules of evidence. The mother alleges that she herself witnessed events involving Y and X which could give rise to a finding of abuse or unacceptable risk of harm.

28. Accordingly, her evidence is the best evidence available and should be given according to the rules of evidence and an order is made to that effect.

29. Orders are made accordingly.

I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Cleary.

Associate:

Dated:       4 May 2021