Vickary and Winch
[2018] FCCA 8
•12 January 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| VICKARY & WINCH | [2018] FCCA 8 |
| Catchwords: FAMILY LAW – Application to change accommodation and school arrangements for children aged 13 & 12 – final orders made in December of 2015 – application of the rule in Rice & Asplund – application made on an interim basis – nature of interim hearing – distance involved comparatively small – is case to be considered as a relocation matter – parties have a poor and mistrustful relationship – allegations of sexual abuse previously made but not resolved – equal shared parental responsibility – which school should children attend – assessment of risk – is risk of abuse unacceptable for court to countenance – matters to be considered – best interests. |
| Legislation: Family Law Act 1975, ss.4(1), 60B, 60CA, 60CC, 68LA |
| Cases cited: B & B: Family Law Reform Act 1995 (1997) FLC 92-755 Rice & Asplund (1979) FLC 90-725 SPS & PLS [2008] FamCAFC 16 CDJ v VAJ (1998) FLC 92-828 Deiter & Deiter [2011] FamCAFC 82 SS v AH [2010] FamCAFC 13 Eaby & Speelman (2015) FLC 93-654 Russell & Russell & Anor [2009] FamCA 28 Slater & Light [2013] FamCAFC 4 N & S and the Separate Representative (1996) FLC 92-655 W and W [Abuse allegations: unacceptable risk] [2005] FamCA 892 Eden & Eden-Proust [2011] FamCAFC 138 |
| Applicant: | MS VICKARY |
| Respondent: | MR WINCH |
| File Number: | ADC 3695 of 2008 |
| Judgment of: | Judge Brown |
| Hearing date: | 8 December 2017 |
| Date of Last Submission: | 8 December 2017 |
| Delivered at: | Adelaide |
| Delivered on: | 12 January 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr Harley |
| Solicitors for the Applicant: | Dixon Gallasch |
| Counsel for the Respondent: | Mrs Read |
| Solicitors for the Respondent: | Black & Wood Divorce Lawyers |
ORDERS
IT IS ORDERED:
Pursuant to Section 68L of the Family Law Act 1975 THAT an Independent Children’s Lawyer be re-appointed to represent the interests of the children X born (omitted) 2004 and Y born (omitted) 2005 and to facilitate such appointment the Parties’ respective solicitors do forward all relevant documents to Mr Graham Russell of the Legal Services Commission of South Australia within seven (7) days of today’s date and that the Independent Children’s Lawyer use his or her best endeavours to be in a position to make submissions to the Court on the adjourned date.
Immediately upon appointment by the said Legal Services Commission of South Australia or otherwise, the Independent Children’s Lawyer file a Notice of Address for Service.
Further consideration of the matter is adjourned for directions, following the appointment of the Independent Children’s Lawyer on 3 April 2018 at 9.30 am.
The matter be listed for final hearing before Judge Brown on 17, 18 and 19 October 2018 at 10.00am NOTING 3 days hearing time has been allocated and will not be exceeded without leave of the Court.
The interim application filed by the mother on 23 August 2017 as amended on 18 October 2017 by which she sought to relocate the children’s place of residence to the (omitted) area is dismissed.
UNTIL FURTHER OR OTHER ORDER
In the event the mother elects to continue maintaining her place of residence in the (omitted) area of Adelaide or its (omitted) suburbs the children X born (omitted) 2004 and Y born (omitted) 2005 live with the mother and the provisions of the orders made by this Court on 15 December 2015, including the injunction pertaining to Mr A, continue.
In the event the mother elects to live in the (omitted) area, the children live with the father at his residence in (omitted) and the children spend time with the mother at such times and subject to such conditions as the parties agree from time with the injunction pertaining to Mr A to continue.
If the parties are unable to agree on an appropriate school for the child X to attend from the commencement of the school year in 2018, within fourteen days of the date of these orders, the parent with whom the children will be residing, as a consequence of the election made by the mother, following the release of the reasons for judgment, is at liberty to enrol the child at the school of his/her choice pending final hearing subject to the operation of Order (9) or Order (10) hereof, whichever is applicable.
If the children live with the mother, as a consequence of her election to remain living in (omitted) or the (omitted) suburbs of Adelaide, the school the child X is to attend must be within a 5 kilometre radius of the (omitted) Primary School.
If the children live with the father, as a consequence of the mother’s election to live in (omitted), the child X is to be enrolled at the (omitted) High School.
The parties are given liberty to apply at short notice in respect of any issue arising from these reasons for judgment as a consequence of the exercise or otherwise of the election provided to the mother.
IT IS NOTED that publication of this judgment under the pseudonym Vickary & Winch is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADC 3695 of 2008
| MS VICKARY |
Applicant
And
| MR WINCH |
Respondent
REASONS FOR JUDGMENT
Introduction
This is a case concerned with a parent wishing to move against a background of complex and largely historical complaints of sexual abuse, which have never been definitively resolved. Ms Vickary “the mother” and Mr Winch “the father” are the parents of X born (omitted) 2004 and Y born (omitted) 2005.
Currently, the mother and children live in (omitted), in the (omitted) suburbs of Adelaide. Previously mother and children lived in (omitted), a rural hamlet, on the (omitted) outskirts of Adelaide, where X and Y have and continue to attend the local primary school.
The father lives in the (omitted) area, a rural settlement, approximately 76kms away from (omitted) but significantly closer to (omitted). Mr Winch has strong family connections in the (omitted) area. Mr Winch is 39 years of age; Ms Vickary is 32.
Pursuant to orders made consensually on 15 December 2015, X and Y spend alternate weekend; half of each school holiday period; and on designated special occasions; with their father. These orders were made following the preparation of a family report and were approved by an independent children’s lawyer earlier appointed to safeguard the interests of X and Y.
Two other significant orders were made on 15 December 2015. They designated that the children were to be exchanged between the parties, to give effect to the orders, at the children’s school (then and now at (omitted)) or, if school was not in session at applicable times, at (omitted), which is about half way between (omitted) and (omitted).
In addition, an order was made restraining each of the parties from bringing either X or Y into the presence of Mr A or permitting any other person to do so. The unresolved allegations of sexual abuse centre on Mr A’ previous involvement with the children concerned.
The mother has two other children, besides X and Y. They are A, born (omitted) 2017 and B, born (omitted) 2011. Mr A is the father of both of these children. For obvious reasons, given that she has two children with Mr A, the December 2015 injunction creates practical difficulties for the mother, particularly in terms of the two sets of half siblings engaging with one another.
Mr A lives in (omitted). (omitted) is a (omitted) located on the (omitted) side of the (omitted). (omitted) is approximately 90 kilometres way from (omitted). The mother has a part-time job, one weekend per fortnight, with the (employer omitted). She is a (occupation omitted) and works on the weekends when X and Y are not in her care but with their father.
X and Y have been attending the (omitted) Primary School at least since the start of term 3 in 2015 and for some time before then. The evidence indicates that the children’s primary school education has been disrupted at times. This is a matter of significant controversy between the parties.
The father asserts that is emblematic of a serious level of dysfunction in the mother’s household; the mother asserting that it is more demonstrative of straitened financial circumstances and accommodation difficulties, which the father has done nothing to alleviate. Needless to say, the parties have a difficult relationship with one another, which is characterised by mutual mistrust and communication difficulties.
At the start of 2018, X will have to start at secondary school. Y has at least one more year of primary school before her. In these circumstances, it is the mother’s case that, regardless of the outcome of her current application, X will have to change school next year and Y must soon follow her.
A is a child with special needs. He has been diagnosed as autistic. As a consequence, he needs to attend a special “ASD” school. It is the mother’s case that there is one such school at (omitted), but not one near the (omitted) Primary School. Mr A is in the process of enrolling A at the (omitted) School. The mother concedes that there are likely to be several ASD schools, in the (omitted) suburbs of Adelaide, readily accessible from (omitted).
The mother travels regularly to (omitted), both for her work and to spend time with A. She wishes to be able to move to (omitted), with X and Y, so that both she and they can spend more time together with A and B. The mother’s parents also live in (omitted). It is her case that it is now a convenient time for X to start at a new school, which is inevitable anyway, given she must start at High School at the start of 2018.
In these circumstances, on 23 August 2017, the mother commenced proceedings in this court seeking its imprimatur to move the children to live in (omitted); enrol X at (omitted) High School from Term 1 of 2018 onwards; and Y at (omitted) Primary School, at the same time. She proposes that she and the children would live in (omitted) but would not share accommodation with Mr A.
Ms Vickary amended her application on 18 October 2017. On an interim basis, she is not seeking to discharge the injunction of 15 December 2015 regarding X and Y coming into the presence of Mr A. On a final basis, it is her position that the injunction should be discharged, as she contends that there is no longer any rationale, relating to protective concerns for the children, for its maintenance.
It is her case that X and Y have a close relationship with both Mr A and A and B and have been expressing a desire to interact with him. She concedes that both X and Y have previously made allegations, acted upon by police, that Mr A had sexually abused them. These allegations resulted in a series of serious charges being laid against Mr A, which were later withdrawn by the Director of Public Prosecutions.
However, it is currently the mother’s case that both children have recanted their past disclosures, during a process of confidential counselling and fresh evidence indicates that they were emotionally manipulated, by their father, to make unfounded allegations against Mr A. Her solicitor, Mr Harley has subpoenaed the children’s counselling records, which she asserts supports her position that the children want to see Mr A and felt pressured to make their disclosures.
In addition, in practical terms, Ms Vickary asserts that there will be little difference, in respect of the practicalities of how the parties exchange the children, in order to give effect to the orders of 15 December 2015, whether she and the children live in (omitted) or (omitted), as the differences in distances to be travelled are not that great.
In effect, she contends that the children will continue to be able to spend the same amount of time with their father as envisaged by the earlier orders, regardless of whether they live in (omitted) or (omitted) and the level of convenience arising for Mr Winch will not be greatly changed.
The father is vehemently opposed to the proposed move, which raises the spectre of the children coming into contact with Mr A, in direct contravention of the earlier order. He refutes any suggestion that he manipulated the children in any way whatsoever to make their serious disclosures of sexual abuse by Mr A.
From his perspective, Mr A remains a present danger to the emotional and physical integrity of both X and Y. Although he concedes that the criminal prosecutions against Mr A did not proceed, he maintains that the disclosures made by the children remain valid and the court is duty bound to give credence to them in discharging its primary obligation to protect them from coming to harm.
Given the small population of (omitted), he asserts that it is inevitable that X and Y will come into contact with Mr A, notwithstanding any assertion made by Ms Vickary that she will continue to abide by the injunction of 15 December 2015 until any necessary final hearing is concluded.
In these circumstances, he seeks the dismissal of both the mother’s interim and final applications. In essence, Mr Winch seeks the maintenance of the status quo and the dismissal of the mother’s application relating to the children moving to (omitted), either provisionally or after a final hearing.
In the alternative, if Ms Vickary maintains her desire to move to (omitted) on a final basis, he seeks to revisit the orders of 18 December 2005 and to pursue orders that would see both children living predominantly with him and X attending the (omitted) High School, with Y to be enrolled at the (omitted) Primary School. In these circumstances, he has not delineated with any precision what orders he would propose in respect of the children spending time with their mother.
These proceedings are concerned with determining in the short term whether Ms Vickary should be authorised to move with the children to (omitted) and enrol them in schools there and what conditions, if any, should attach to that move.
From her perspective, there is a situation of urgency concerning the matter, given where A is currently living and his need to be enrolled at an ASD school, when coupled with the fact that a decision needs to be made, prior to the start of 2018 academic year, regarding which school X should attend.
On the other hand, Mr Winch contends that there is no significant degree of urgency attaching to the matter and any complex issues of relocation should not be determined, in an abridged interim hearing, but rather should be left in abeyance until a final hearing can be convened.
For her part, Ms Vickary contends that she is (and has been) the children’s undisputed major provider of care and, when the distances involved are considered, the proposed move to (omitted) cannot be characterised as one falling within the rubric of what family lawyers categorise as a relocation case.
Over hanging this complex and controversial issue is the shadow of the unresolved allegations of sexual abuse concerning Mr A and the parties’ poor and mistrustful history with one another. It is beyond the scope of these proceedings, arising as they do at an interim hearing stage, to determine definitively whether or not either X or Y has been sexually abused.
Cases involving the sexual abuse of children raise particularly difficult issues. On the one hand, any suggestion that a child has been sexually abused raises fundamental issues relating to the physical and psychological safety of the child concerned. Necessarily the court must take allegations of such abuse extremely seriously.
On the other hand, it may be very difficult, if not impossible, for the court to resolve definitively whether abuse did or did not occur. Very often disclosures of sexual abuse are made to only one person by a child who is developmentally immature. In addition, there may be no independent physical evidence to indicate that abuse did occur. In these circumstances, the child concerned may not be able to recount the disclosure to an investigating authority either coherently or consistently.
It is not the court’s role to determine whether abuse has or has not occurred. In the circumstances, depending on the circumstances prevailing in the particular case concerned, this may not be possible given the extent of evidence available to it. Rather the court must remain focussed on the best interests of the child concerned. It is in the exercise of this function that the court must assess the degree of risk arising for the child involved in the case before it.
Background
In order to understand the dynamic of the current dispute arising between the parties, it is necessary to detail the extensive history of previous litigation between them in this court from September of 2008 onwards.
In this context, it also needs to be pointed out that, notwithstanding the extensive litigation concerned, there has never been a final hearing. In these circumstances, many aspects of the parties’ criticisms of one another have never been definitively resolved through the court making findings regarding their credibility and that of the other witnesses concerned. This is particularly so in respect of the allegations concerning Mr A.
Accordingly, the current issues arising between them falls for potential resolution in an interim hearing, which has necessarily taken place in a truncated form without recourse to oral evidence, including cross-examination. As a consequence, the court is unable to resolve the very many significant factual controversies, which remain outstanding between the parties.
In all these circumstances, one of the significant procedural issues arising in this case is whether the issues raised by the parties are ones which are amenable to resolution in an interim hearing. It being Ms Vickary’s position that the situation confronting her is one of such urgency that the court is duty bound to deal with it now.
Clearly, Mr Winch does not agree. It is his position that given the significant allegations of abuse made in the case and the concurrent issues of risk arising in respect of X and Y, these issues are not ones which the court should embark upon resolving in the context of an interim hearing.
Significantly, the children have been independently represented in some of the previous proceedings and a family report prepared. The report in question was prepared by Ms K in October of 2015 and canvassed, in part, the allegations of sexual abuse involving Mr A. The report was instrumental in the consent orders of 15 December 2015, which included the injunction concerning Mr A’ involvement with the children, which were approved by the Independent Children’s Lawyer.
The parties began to live together in 2002; married on (omitted) 2006; and separated in difficult circumstances, on 26 August 2008. It is the mother’s case that she has always been X and Y’s primary provider of care, apart from incidents when the father has unilaterally retained the children or for a period during which the allegations concerning Mr A were under investigation.
It is the mother’s case that her relationship with the father was one characterised by her being the subject of coercive and controlling family violence from the father, to which both children were regularly exposed. In addition, she alleges that the father has longstanding issues to do with his psychiatric health.
The mother first commenced proceedings in mid-September of 2008, when X was four years of age and Y was not yet three. She sought orders that the two children live with her and that the father undertake an anger management program.
On 1 October 2008, Federal Magistrate Terry made orders that the children concerned live with each of their parents on a week about basis. At the time, the mother was living at (omitted), in the (omitted) suburbs of Adelaide.
Mr Winch had not filed any answering material at the time the mother’s application was initially listed. The parties were referred to a child dispute conference on 5 November 2008, which neither the father nor the mother attended. The proceedings were later adjourned to 16 February 2009 and the time for the father to respond was extended.
On 16 December 2008, the mother filed an affidavit, in which she deposed that the father had sent her a number of text messages in late November of 2008, indicating that he loved both the mother and the children and intended to commit suicide because of the parties’ separation. A friend of the family broke into the father’s home and found him hanging. The father was admitted to hospital where he was legally detained for his own protection under the provisions of the Mental Health Act.
Thereafter, much of the focus in the case was on the father’s state of psychological health. When he responded to the mother’s application, he denied that he had ever behaved in a violent manner towards either the mother or the children. Rather, he alleged that it was the mother who had the reactive and unpredictable personality. He acknowledged that he had attempted suicide but asserted that he had thereafter received appropriate psychiatric and psychological support and was no longer at risk, either to himself or the children.
On 7 September 2009, the parties were able to agree on final orders (made by Lindsay FM) for the care of X and Y, who were to live predominantly with their mother and spend time with their father each weekend from 6:00pm Friday until 6:00pm the following Sunday; as well as for half of each school holidays. The parties also agreed that they would share parental responsibility for the children equally.
The mother recommenced proceedings on 2 April 2015. At this stage, she sought a recovery order in respect of the children. In support of her application, she asserted that the father had a long history of depression and had been once again detained under the provisions of the Mental Health Act in 2013 or 2014. She also alleged that Mr Winch had attempted to exert psychological pressure on X and Y, in order to compel them to express a preference to live predominantly with him rather than their mother.
The mother outlined other criticisms she had of the father, which included that he allowed the children to watch unsuitable films and have unsupervised internet access. The mother also complained that the father was unreliable in his provision of financial support for the children. At this stage, she confirmed her involvement with Mr A and indicated that the two had been in a relationship for the past six years.
The reason for the mother’s application was that the father had retained the children on 29 March 2015, on the basis that they were not safe in the mother’s care. At the time, Ms Vickary was living in (omitted) and X and Y were attending the (omitted) Primary School, where X was in grade 5 and Y was in grade 4. At the time, the mother deposed that she was unaware of the basis on which Mr Winch asserted that the children were unsafe in her care.
Ms Vickary’s application was made returnable on 4 May 2015. On 28 April 2015 Mr Winch filed affidavit material in which he provided his reasons for withholding the children in breach of the earlier order made by Lindsay FM. This was the first time I personally became involved with the parties.
In his affidavit, the father indicated that Y had disclosed to him on 28 March 2015, she had been the subject of sexual abuse by Mr A. He asserted that the child had spontaneously indicated that Mr A had both touched her genitalia and made her touch his penis. As a consequence, he had also questioned X, who made similar disclosures. Thereafter, he made a complaint to the (omitted) Police, who interviewed the children and referred the matter to the CIB and the Child Protection Service.
As a consequence of these disclosures, Mr Winch decided to retain the children and enrol them at (omitted) Primary School. Both X and Y were interviewed by police officers and by the CPS. Later, in early April of 2015, Mr A was arrested and charged with five counts of sexual assault against the children.
On 4 May 2015, given the extremely serious allegations raised in respect of Mr A’s conduct towards the children, I made an interim order that the two children live with their father. I made further orders enabling the mother to spend day time periods of supervised time with their mother on each Sunday.
It was at this stage that it was ordered that X and Y should be represented independently of their parents. One of the reasons for such an order being that it was likely that such representation would provide a ready mechanism for information concerning the actions of the authorities in investigating the abuse allegation to come before the court relatively expeditiously.
The mother deposed that she had had no knowledge whatsoever of any episodes of sexual abuse involving the children and Mr A and had observed no signs of such abuse in either of the children. At this early stage, she indicated that she took the allegations very seriously and had done all she could to cooperate with the authorities investigating the matters. She further deposed that she was aware (and had been informed similarly by the Child Protection Authorities) that she understood paedophiles were often extremely adept at hiding their activities.
The mother further deposed that she had educated the children in respect of the dangers of sexual abuse and told them to report such matters to her. As such, it was her view that both children would have been comfortable confiding any serious issue in her. During the course of her relationship with Mr A, she asserted that she personally had observed no physical signs of abuse in either child. Mr A was bailed, by police to live at a different address to that of the mother and the children.
Ms Vickary expressed some disquiet that Mr Winch had not elected to discuss the children’s disclosures directly with her, but rather had elected to withhold them from her. In these circumstances, she was concerned at the potential for the children’s emotional equilibrium to be upset by having their long term living and school arrangements abruptly upset. She further indicated her willingness to abide by any directive preventing the children coming into any form of contact with Mr A.
Given the lack of any evidence of the mother’s own personal involvement in the allegations arising and the indications that she was taking the matters seriously and was cooperating with the relevant authorities, I was prepared to make orders allowing her some modest engagement with X and Y, whilst the investigation unfolded.
I considered that this was a proportionate response to the degree of risk arising in the case, including the risk of the children being potentially separated from their primary carer for an extended period of time. Both SAPOL and the Child Protection Authorities were directed to provide the court with all relevant documentary evidence relating to the notifications of child abuse received by them in respect of X and Y.
The independent children’s lawyer was Ms S, an experienced Adelaide family lawyer. Pursuant to the provisions of section 68LA of the Family Law Act, she was under a statutory obligation to examine all relevant material available to her and advocate the position, to the court, which she believed was likely to be in the best interests of the two children, whom she represented.
On 4 June 2015, the mother filed a further application in which she sought, on both an interim and final basis to resume the predominant care of the children. In her affidavit filed in support of the application, she deposed that she believed the children were extremely unsettled as a consequence of being removed from her care and had indicated to her that they wished to return to her home, because things with dad had not been as they had expected. It was also the mother’s case that the children did not enjoy attending (omitted) Primary School.
Ms Vickary was also concerned that the children were missing their sporting commitments and the father was not in a position to provide appropriate day to day care because of his work as a (occupation omitted). Underpinning her position was her assertion that the Police and Child Protection Authorities had told her that they hold no concerns about the children returning to her care. She also indicated that she had taken steps to refer the children to appropriate counselling.
On 9 June 2015, after hearing oral evidence from the mother, orders were made reinstating the orders which had been suspended. It was further ordered that the children should return to (omitted) Primary School at the start of term 3. On this date the parties’ competing applications were fixed for final hearing in March of 2016; and a family report was ordered to be prepared to be released at the end of September 2015.
It remained the father’s position that the mother had had serious suspicions, for some time, that Mr A was sexually abusing the children and had an interest in child pornography. It was his position that she had lied, both in her affidavit and the witness box, when she had said that she had no inkling regarding these matters and did not tolerate pornography of any kind in her home.
As a consequence of orders made by the court, the parties had access to a significant amount of material prepared by Families SA and SAPOL regarding the involvement of the child protection authorities with the children, their mother and Mr A. From the father’s perspective, these confirmed his suspicions that the mother had been aware for several years that Mr A represented a threat to the children.
In an affidavit filed on 10 September 2015, Ms Vickary deposed that, in the immediate aftermath of Mr A being charged, she did not accept that he had sexually abused the children. However, following discussions with the police officer overseeing the investigation, she became convinced that Mr A had in fact abused the children.
In this context, she deposed that she had severed her relationship with Mr A and could not see it being re-established under any circumstances. Further, so far as A and B were concerned, they would not be spending time with Mr A unless there was compelling evidence that he has not been guilty of sexual abuse. It was on this basis that it was accepted, by the court, she would be protective of the children and ensure that they did not come into contact with Mr A.
Mr Winch, at this stage as is his position at the present time, was critical of Ms Vickary for moving frequently and so failing to provide the children with stability in terms of their accommodation. She confirmed that she had moved three times in the past three years and as a consequence the children had attended four different schools, one of which was (omitted) Primary, as a consequence of Mr Winch’s retention of them.
The mother and the independent children’s lawyer subpoenaed many psychiatric records relating to the father’s previous hospital admissions. They indicated long standing depression, which had been characterised by an extreme risk of self-harm and aggressive/pathological jealousy. Accordingly, the case was one characterised by many complex issues – both emotional and factual.
Against this difficult background, the parties competing applications were fixed for final hearing and a family report prepared. The report was compiled by Family Consultant Ms K and released to the parties on or about 21 October 2015.
Ms K carefully recorded what each of the parties told her, particularly in respect of their relationship history and their respective positions in respect of the abuse allegations. The mother categorised the parties relationship as one categorised by significant family violence. She also indicated that she had some concerns that Mr Winch had sexually abused X in 2013. In this context, Ms K recorded as follows:
“Ms Vickary explained her original suspicions that Mr Winch had prompted the children’s allegations in relation to Mr A as based on her experience with Mr Winch during their relationship where he was “mentally abusive”, and that he often threatened to “take the girls”. She also spent time reflecting on her initial sensation that “my world had tipped upside down”, prompting her to question Mr A’s arrest. However, Ms Vickary noted that she came to appreciate that Y and X had no motivation to fabricate such allegations, and that she had been assured by the Police that their disclosures were reliable.”[1]
[1] See Family Report of Ms K dated 21 October 2015 at [42]
Ms Vickary acknowledged to Ms K that Mr Winch was very protective of the children. She also conceded that her relationship with Mr A had not been without significant incident. In particular, she was concerned at him accessing material involving teenaged girls on You Tube, which had caused her to break his computer. She also alleged that Mr Winch had also watched pornography. None of these allegations has been subjected to any scrutiny by the court.
To Ms K, Mr Winch indicated his view that Ms Vickary was not likely to protect the children adequately and he had grown to mistrust her, in this regard, over the years. He further indicated to Ms K that his psychiatric health had improved significantly over the last few years and he had become more skilled at recognising any recurrence of his symptoms, and so was able to take appropriate action, including seeking treatment.
Ms K observed both children to interact appropriately with each of their parents. X told Ms K that she had informed her father, rather than her mother, of the sexual abuse matters because she doubted that her mother would believe her and “Mr A (was always around … and) he told us not to tell mum.”
Ms K’s evaluation of the family can be summarised as follows:
·The parties’ relationship was characterised by a significant level of mistrust, which the current crisis arising because of the police actions against Mr A, had exacerbated;
·Ms K could find no conclusive evidence that the mother lacked an ability to protect the children. In this context, she noted that the mother was in the process of seeking appropriate psychological support for the children;
·It was a positive that the children perceived their father as being someone they could confide in;
·The children had a significant relationship with their paternal grandparents;
·Ms K was worried at the possibility that Mr Winch had minimised his past history of psychiatric ill health;
·Notwithstanding these concerns, there was no justification to reduce the father’s time with the children, particularly whilst he remained living with his parents;
·A week about regime was not feasible, given the distance between the parties’ respective homes.
In all these circumstances, Ms K recommended that the then current regime continue. However, significantly, Ms K also recommended as follows:
“That Ms Vickary be restrained and an injunction be placed on her from bringing Y or X in contact with Mr A, regardless of the outcome of criminal proceedings, and that if she did so or resumed a relationship with him for the Court to reconsider the primary care arrangement and consider only supervised time between the children and their mother.”
In the context of Ms K’s thorough report, the independent children’s lawyer elected to convene a family dispute resolution conference, at the Legal Services Commission. At this conference the parties were able to agree the orders which were subsequently made by the court on a final basis on 15 December 2015.
Accordingly, as I observed at the outset of these reasons for judgment, a great many serious factual controversies arising between the parties remain unexamined in the open and necessarily forensic forum of the court setting, which provides for competing claims to be subject to cross examination by skilled advocates.
What has happened more recently
The mother recommenced proceedings on 23 August 2017. On a final basis, she seeks orders which would enable her to enrol X at (omitted) High School and Y at (omitted) Primary School from the commencement of term 1, 2018. In conjunction with this order, she seeks the court’s imprimatur to change the children’s residence to one within the (omitted) area.
In addition, she seeks to change the current long school holiday arrangements from an arrangement which sees the children spending alternate weeks with each of their parents to one that sees the holidays divided equally between them, with the father having the first half in even years and the reverse in odd years. More significantly, in the context of these proceedings, she seeks the discharge of the order restraining the parties from bringing the children into the presence of Mr A.
Ms Vickary amended her application on 18 October 2017. On a final basis, she seeks an order requiring each parent to facilitate the children’s attendance at sporting commitments during the time the children are in each parent’s care. Significantly, at the interim stage, she seeks the making of the final orders sought by her as outlined above be made now.
However, she has abandoned her application to discharge the injunction regarding Mr A on an interim basis. Essentially, Ms Vickary seeks that her application to move to (omitted) be dealt with on an interim basis in the context of a truncated hearing, but that the injunction concerning Mr A continue until final hearing.
The mother’s application first came before the court on 26 September 2017. The father had not filed answering documents. On this basis the case was adjourned to 15 November 2017. On 15 November 2017, the father had still not filed his answering documentation, notwithstanding that he had been ordered to do so by 27 October 2017. It was the position of his lawyer at the time that he was having difficulties in respect of having his application for legal aid approved. The case was further adjourned until 8 December 2017.
In her affidavit filed in support of her application, the mother alleges that the children have reported to her that their father has often taken them to social occasions at which he has become severely intoxicated. She alleges that the children have been very distressed by this behaviour.
More significantly, she advises that both X and Y have informed her that they fabricated the allegations against Mr A in an attempt to secure the reunification of their parents. As a consequence of this disclosure, Y asked to speak to police about her statement whilst X requested a counsellor.
In this context, it is Ms Vickary’s evidence that both children consulted a counsellor at Centacare. During this consultation both children conceded that they had fabricated the allegations against Mr A. As a consequence, arrangements were made for both children to be re-interviewed by police. Later, the Director of Public Prosecutions determined to withdraw all charges against Mr A.
In these circumstances, the mother has deposed as follows:
“After the charges were dropped with Mr A and I made arrangements for our two children A and B to spend time with Mr A on each alternate weekend and for half the school holidays.”[2]
[2] See mother’s affidavit filed 23 August 2017 at paragraph 64
As obliged by the orders of December 2015, the mother has prevented X and Y coming into contact with Mr A. It is her case that this situation presents her with significant practical difficulties given Mr A’s relationship with A and B. It is also Ms Vickary’s case that both X and Y view Mr A as a father figure and Y in particular is angry and frustrated that she cannot spend any time with Mr A.
Given the withdrawal of police charges against Mr A and the alleged recantation made by X and Y against him, it is Ms Vickary’s position that it is no longer appropriate for the family unit to be split up further. It is her case that X and Y have a particularly close relationship with A and it is therefore against their best interests to be separated from him.
She asserts that Mr Winch was initially supportive of the children moving to (omitted). She implies that his consent has been withdrawn in order to assist him in his application to secure the children living with him in (omitted). From Ms Vickary’s perspective, the children attending school in (omitted) is the least practical outcome, as (omitted) does not have an ADS school, which is suitable for A to attend.
It is Ms Vickary’s position that it is a pretty much of a muchness, whether the father has to travel to (omitted) or (omitted) to collect the children. She asserts as follows in respect of the travel times:
(omitted) to (omitted)
1 hour 5 mins
Distance 89kms
(omitted) to (omitted)
46 minutes
Distance 64kms
On 8 December 2017, Ms Vickary’s solicitor filed an affidavit to which are attached the records of the children’s counselling at Centacare between December 2015 and May of 2017. The same counsellor was involved throughout this process, which comprised fifty-four sessions in all.
However, the counsellor concerned has not personally prepared an affidavit or given a direct interpretation of her records to the court in the complicated circumstances surrounding this litigation. As delineated hereunder, the records raise fresh controversies.
The most significant consultation occurred on 22 December 2015. The counsellor concerned records the following:
“I then spent some time with X, X talked about not being happy at school. She is concerned that next year she will be bullied. X cried as she told me she had told a lie about Mr A because she wanted her mum and dad to get back together. She said she was embarrassed about telling the lie. We talked about lies and truth and she told me she just couldn't keep telling a lie and she didn't want Mr A to go to prison. X also talked about how she wasn't happy when mum would spend time with Mr A and not her. X said she was afraid to talk to her dad about it. She said he yells a lot and talked about him grabbing her. See said he is a bit better now that he is living with his parents. She also said she was afraid of the police and always has been. She was scared she might go to jail for telling the lie. X had some questions about a trial and what that meant. We went through some information using a book. X also said she would like to spend more time with mum and be able to do things like go to the park. Mum is always busy.
I then spent some time with Y. She spoke about not wanting to tell the lie anymore. She said she had told her dad what she said about Mr A wasn't true but he told no it was the truth what she had said to him and the police. She said she was scared and didn't want to talk with him about it again. She said she wanted to tell the police and didn't want Mr A to go to prison and get hurt. I asked her how she would describe Mr A and she said thought about it and told me he was:
- nice
- fun
- helped us with our homework
She went on to tell me she saw a thing on Mr A’s phone. I asked her what she saw and she told me she saw her mum and Mr A doing what you do to make babies. She said her mum then walked in and saw them with the phone and she new they had done the wrong thing. She then said she told the lie because she wanted mummy and daddy to be together.”
The counsellor’s notes also include her interaction with Ms N, who is described as the witness assistance officer at the office of the Director of Public Prosecutions. Ms N was present when the children were interviewed by DPP staff.
Ms N reported that when Y was interviewed, she indicated that she made it up. Y was described as being very firm that the assaults didn’t happen. She reported further that X, when interviewed, had burst into tears and indicated that her mum had put pressure on her to say it didn’t happen.
In a later session occurring on 6 September 2016, the counsellor concerned describes her interaction with X in the following terms:
“Counsellor told X that the social worker from the DPP had been in touch. Counsellor told X the social worker had explained X had told them Mr A did abuse her. X said yes and started to cry. X then told the counsellor she said it didn’t happen as she felt pressured because the younger children are not allowed to see there Dad. Its not fair and its my fault. X said she didn’t want her mum to know she had told the police it did happen. Counsellor explained she could support X around what has happened. Also explained there may come a time when mum does need to know. Her safety and the safety of the other children is very important. X said she was alright with seeing Mr A and wanted him to be able to spend time with B and A.”[4]
[4] Ibid at page 21
It seems to be in this context that the DPP elected to withdraw the charges against Mr A. The children were described as being happy that the police were not going to take Mr A to court. However, I have not been provided with the directors formal reasons for this decision and, it may well be the case no such formal reasons were provided. The mother described the children to their counsellor as being happy that the police were not taking Mr A to court.
Those advising Ms Vickary have expressed some umbrage that Mr Winch has been delayed in filing his affidavit material until shortly before the hearing – the implication being that this has disadvantaged the mother. For his part, Mr Winch’s counsel has characterised the mother relying on issues surrounding A’s education and the requirement that X start at High School next year as pretexts to secure her relocation to (omitted) – the implication being that she has other viable alternatives available to her.
It is Mr Winch’s position that the initial disclosures made by the children have not been negated in any way whatsoever. As such, he maintains his position that Mr A remains a serious threat to their psychological wellbeing. He vehemently refutes any suggestion that the children have been manipulated by him into making any false allegations of sexual abuse against Mr A.
It is Mr Winch’s position that the charges against Mr A were only withdrawn because X and Y declined to attend court to give evidence. However, it is his understanding that the children maintained the truthfulness of their original statements to police and it was the view of the prosecutor concerned that the children’s statements were reliable. In these circumstances, it is the father’s position that the children were reluctant to give evidence because their mother was in denial about Mr A and his abuse of the children.
Essentially, it is Mr A’ position that the children declined to give evidence against Mr A, in order to mollify their mother. In addition, he asserts that Ms Vickary has castigated the children on numerous occasions, that “it is your fault the two younger children can’t see their father.”
Mr Winch maintains his longstanding characterisation of the mother as being unreliable and manipulative. In this context, he asserts that the court can have no confidence in any disavowal by her that she will not bring X and Y into contact with Mr A if she is able to move to (omitted) with them. In addition, he points to the small size of (omitted) and asserts that it is inevitable that X and Y will run into Mr A sooner or later.
Another area of factual controversy between the parties concerns X and Y’s views about spending time with Mr A. Mr Winch refutes any suggestion that they wish to see Mr A. To the contrary he asserts that the children felt pressured by their mother to see Mr A.
At present, notwithstanding Ms Vickary’s move to (omitted), the children are exchanged between the parties either at their school ((omitted)), when school is in session and otherwise at (omitted). In these circumstances, he asserts that he will be prejudiced if the children move to (omitted), as he will have to drive further under her proposal. He rejects any suggestion as propounded by the mother that he works in the (omitted), which is to the (omitted) of (omitted).
In the context of the drive between (omitted) and (omitted), the father and mother have apparently proposed several intermediate handover spots, ranging from (omitted) (which favours Ms Vickary) and (omitted) (which favours Mr Winch). In this context, the father has provided the following distances, and estimates of time of travel.
(omitted) to (omitted)
24 minutes
Distance 36kms
(omitted) to (omitted)
1 hour 5 minutes
Distance 89kms
(omitted) to (omitted)
45 minutes
Distance 59kms
(omitted) to (omitted)
20 minutes
Distance 26kms
Accordingly, it remains the father’s position that there are significant factors, which favour X and Y living predominantly with him in (omitted). These include that the mother has not provided any particulars in respect of the accommodation, which she will utilise in (omitted) and whether it will be of sufficient size to accommodate four children. More significantly, it remains Mr Winch’s position that the mother remains in denial about the sexual proclivities of Mr A and therefore she is unable to be sufficiently protective of X and Y.
Applying legal principles to the factual matrix
One of the major difficulties in the case is that a decision has to be made about which high school X should attend for the start of the 2018 year. Ms Vickary has not provided an alternative to (omitted) High School. I assume (for obvious reasons) that there must be a secondary school, which the majority of X’s current compadres at (omitted) Primary will attend next year. However, what that school is has not been disclosed to me.
In addition, I have little information concerning Ms Vickary’s current situation with her accommodation at (omitted) – can she extend her tenure there into 2018 if she has to. The only information I have about her current accommodation is that it is a three bedroom house, which is well-equipped for the needs of X, Y and B.[5] The distance between (omitted) and (omitted) is approximately 15 kilometres.
[5] See mother’s affidavit filed 23 August 2017 at paragraph 87
I have not been informed why Ms Vickary and Mr A have determined that separate accommodation arrangements have to be made for A and he has been separated from his siblings. Mr Harley concedes that there are suitable ASD schools for him in the (omitted) suburbs of Adelaide. Finally, Ms Vickary has not provided any information about her proposed accommodation in (omitted), although this is likely to have been an oversight.[6]
[6] Ibid at paragraph 88
Accordingly, I am troubled that Ms Vickary has not provided any fall-back position as an alternative to her preference to move to (omitted). Mr Winch’s position is that her application should be dismissed in the interim or alternatively the children should live with him and be enrolled at schools in the (omitted) area.
Similarly to Ms Vickary, Mr Winch does not have any proposal for another school for X, if his alternative application is not acceded to and the mother’s move to (omitted) is not ratified in the interim. This lacuna, in my view, is reflective of the polarised positions of the parties and the difficulty they have in both discussing and determining any issue pertaining to their children.
The central issue, in the case at this stage, centres on child protection issues. However, as I have already pointed out, at this interim stage and perhaps even after a final hearing, the court will not be in a position to make definitive findings as to whether or not X and Y have been subject to some form of child abuse or other form of sexual exploitation by Mr A in the period prior to April 2015.
Notwithstanding these evidentiary difficulties arising at the interim stage, the court must still nonetheless make a decision and put in place the orders, which it considers will best regulate the situation so far as X and Y are concerned, according to the relevant principles contained in the Family Law Act 1975 (the Act).
In this context, the court must bear in mind that although these are interim proceedings, parenting arrangements for the two children are subject to a final order, which was made consensually by the parties at a stage after the allegations of sexual abuse concerning Mr A were made.
Accordingly, to some extent, this issue has been the subject of concluded litigation, as has the issue of with whom of their parents the children will live predominantly and the time they will spend with their other parent. A final order is taken to be reflective of the best interests of the child who is the subject of it.
Each of the parties currently wishes to challenge different aspects of the final orders made on 15 December 2015 but leave other aspects unchanged. It is the mother’s position that she has been the children’s primary provider of care for a significant period of time and the living and time spending components of the orders should not be subject to any radical change.
It is Ms Vickary’s case that the proposed move to (omitted), given the distances involved, cannot be properly characterised as a relocation case as Mr Winch will be able to spend time with X and Y on the same basis as is envisaged by the current orders, if she and they move to (omitted) and Mr Winch remains living in (omitted).
Relocation cases arise when one parent of a child wishes to move far away from the other parent concerned, taking the child of the relationship with him or her. Such cases are invariably very difficult. Australia is a free country. As such, individuals, including parents, are free to live where and how they like. On the other hand, children have a right to know and to be cared for by both their parents.
However, the tyranny of distance develops by degree.[7] For obvious reasons, it is likely to be more difficult for a child to maintain a meaningful relationship with a parent if an international relocation is involved or the move involved is to a far distant part of Australia – say from Cairns to Canberra or Broome to Bairnsdale. That is not the case, in the present matter, given the comparatively modest distance between (omitted) and (omitted).
[7] See B & B: Family Law Reform Act 1995 (1997) FLC 92-755 at 84,196
As a consequence of these factors, superior courts in Australia, including the High Court, have indicated that every family law case involving a relocation aspect requires close and idiosyncratic examination. Such a degree of intricate scrutiny is not usually possible at the early interim stage of proceedings, at which stage evidence is very often hastily prepared and so incomplete.
Accordingly, at the interim stage, the normal approach adopted by the court is not to allow a relocation of a child involving a significant level of distance, unless there is some kind of emergency or personal crisis confronting the relocating parent, which if left unresolved has potentially serious implications for the welfare of the child concerned.
Ms Vickary asserts that her situation is one characterised by emergency – the separation of her and the other children from A and the need to make urgent arrangements for X to attend secondary school – however she would also characterise her situation as not being a classic relocation case.
In addition, she asserts I think that it is inappropriate for the court to embark upon a full scale re-examination of arrangements for the care of the children, given the recent making of a final order concerning the major aspects of their care, which she does not seek to challenge. This is the basis of the so-called rule arising from the well-known case of Rice & Asplund.[8]
[8] Rice & Asplund (1979) FLC 90-725
Rice & Asplund is a manifestation of the paramountcy principle concerning children. In all matters concerning children, the best interests of the children concerned is the paramount or most important consideration.
As the circumstances of both a child’s separated parents must inevitably change from time to time, parenting orders are never final in the sense that the court always retains a jurisdiction to deal with such changed circumstances.
However, some degree of change is a necessary corollary of life and should not of itself allow parenting orders to be easily revisited. Otherwise to allow further applications on the basis of a change of circumstances alone, would be likely to be an invitation to never ending litigation between parents, which of itself has the potential to be detrimental to children as it has the potential to make endemic parental conflict in the life of the child concerned.
For that reason, a court will not readily re-open a case concerning parenting orders recently made. There needs to have been a substantial change in circumstances before a court will do so. This is the basis of the rule in Rice & Asplund.
The primary purpose of the rule is to prevent “endless litigation”[9] and is based on three main pillars. Firstly, finality of litigation avoids expense to the public occasioned by “subsequent hearings and the imposition of them on court time”[10].
[9] See Rice & Asplund (supra) per Evatt CJ at 78,905
[10] See SPS & PLS [2008] FamCAFC 16
Secondly, the imposition of the rule avoids the potential “evil” of one judicial officer substituting his or her “opinion of what is in the best interests of a child” for that of another judicial officer on the basis of the same factual circumstances.[11]
[11] Ibid at paragraph 58
Human nature being what it is, it is inevitable that some litigants will want their cases reheard in the hope that a different adjudicator will reach different conclusions about the evidence led. The rule negates this potential outcome.
Thirdly and most importantly, generally speaking, it is not in the interests of children to have repeated applications before the court concerning arrangements for their living arrangements. Litigation is not helpful to children. It is desirable that arrangements for their care be stable and so final. For obvious reasons, children are not well served by frequent displacements or being subject to uncertainty about where they will be living in future.[12]
[12] See CDJ v VAJ (1998) FLC 92-828 at 85,449
The final orders of 15 December 2015 alluded to Rice & Asplund. Order 15 of those orders provided Mr Winch with the authority to re-open the parenting orders arrangements, in the event of any breach of the injunction regarding Mr A, without any impediment in the form of the rule. No doubt, this was in recognition of his abiding concern about the potential threat Mr A represented to the two children concerned.
In this sense, in my view, although there are final orders, the powerful issues surrounding Mr A and the potential for him to have any on-going involvement with X and Y remain unfinished business for both Ms Vickary and Mr Winch. Significantly, they have also have diametrically opposing views about both the level of threat he represents for the children and what are the respective views of X and Y about re-engaging with him.
In all these circumstances, I am satisfied that the dismissal of the criminal charges against Mr A; the mother’s desire to move to (omitted) with the children; and the fact that she has resumed her relationship with Mr A; are circumstances of such moment to warrant the re-opening of the proceedings, notwithstanding the potential they have to re-traumatise both X and Y, who present, at least from the counselling notes, as children torn between the competing emotional demands of their parents.
In these circumstances, in my view, it is simplistic to portray the proposed move to (omitted) as either being analogous to one involving a simple move across suburbs in a large conurbation or to a wholesale relocation. Rather, the issue is one which is inherently tied up with issues to do with child protection. As such, in my view, the evidence arising in it must be closely examined, bearing in mind its limited and untested nature.
In this context, it is clear that the court is required to consider child protection issues in its decision making processes, and should not defer its responsibility in this regard because of deficiencies in the evidence before it or, more importantly, because it is not in a position to resolve definitively the various controversies arising between the parties, including in respect of potential child abuse issues.
In particular, I do not consider that these issues can be regarded as having been conclusively determined by the earlier proceedings. Rather these issues remain at large. It is, however, in my view, a significant thing that Ms Vickary agreed to abide by the injunction regarding Mr A and she did, ostensibly at least, acknowledge that he represented a degree of risk to X and Y.
In Deiter & Deiter[13] the Full Court said as follows:
“The assessment of risk is one of the many burdens placed on family law decision makers. Risk assessment comprises two elements – the first requires prediction of the likelihood of the occurrence of harmful events, and the second requires consideration of the severity of the impact caused by those events. In our view, the assessment of risk in cases involving the welfare of children cannot be postponed until the last piece of evidence is given and tested, and the last submission is made. We accept, however, that it is always a question of degree depending on the evidence that is before the Court.”
[13] See Deiter & Deiter [2011] FamCAFC 82 at [61]
In SS v AH[14] the Full Court indicated, in the context of discussing the obligations of the court, whilst conducting interim children’s proceedings, in circumstances where the evidence available was contradictory in nature, but nonetheless raised significant welfare concerns for the children concerned as follows:
“Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.”
[14] See SS v AH [2010] FamCAFC 13 at [100]
In Eaby & Speelman[15] the Full Court endorsed this approach as enabling “the court to appropriately and carefully deal with contentious issues relevant to the welfare of the child, and for those issues to not be ignored.” In essence, the court is not in a position to ignore child protection issues, merely because those issues are incapable of definite resolution, at the interim stage. This is the position in the matter currently before the court.
[15] See Eaby & Speelman (2015) FLC 93-654 at 80,332 [19]
With those strictures in mind, I turn now to the specific provisions, within the Act, dealing with the making of parenting orders and the relevance of allegations of abuse to such orders. It is to be noted that although the nature of the hearing is different at the interim stage, as opposed to the final hearing stage, the legal principles to be applied are the same.
In deciding to whether to make any particular parenting orders, in relation to a child, the court must regard the best interest of that child as the paramount or most important consideration [Family Law Act 1975, 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 list form, in section 60CC.
The section creates two classes of considerations which are relevant – primary considerations and a longer list of additional considerations. Generally speaking, the court should give greater weight to the primary considerations, which closely tie in with the overall objects and principles of the Family Law Act 1975 set out in section 60B.
There are two primary considerations, which are as follows:
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.
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 protective concerns applicable to the children who are the subject of the relevant proceedings.
In the words of the relevant explanatory memorandum “where child safety is a concern, this new provision will provide the court with clear legislative guidance that protecting the child from harm is the priority consideration.” Future protective issues for a child are the court’s priority.
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. Depending on the circumstances of the case concerned, one or more of these factors may come to the fore.
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.[16]
[16] 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 …”[17] As such the various factors, in section 60CC, are inclusive but not exclusive of one another.[18]
[17] See B v B: Family Law Reform Act 1995 (ibid) at 84,220
[18] See Russell & Russell & Anor [2009] FamCA 28 at [141] per Ryan J
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.”
As indicated above, in Deiter, the Full Court has directed that, in assessing the degree of risk incumbent in any particular parenting scenario, the court must look to the degree of probability that a harmful event will occur in future and what will be its severity, to any individual, particularly any child, who will be potentially affected by it.
Essentially, the court is required to assess risk and put in place a proportionate response to the degree of risk involved. Risk arises in every aspect of human endeavour. No individual’s life, including the life of a child, can be rendered entirely free of all risk. In this court, as with life, it is a question of balancing and assessing the degree of risk arising, on an objective basis.
The court is frequently called upon to assess all manner of potential risks to the children concerned in proceedings coming before it. These risks include the risk of exposing a child to a parent, who is incapacitated by the consumption of drugs or alcohol; compromised parenting, as a result of psychological illness or personality disorder; possible risks relating to the exposure of a child to an angry and unpredictable parent; and, as in the present case, the risk of a child being exposed to a parent’s sexual behaviour or more seriously the child being sexually assaulted or used as an object of sexual gratification.
The Full Court in Slater & Light expressed the task of assessing risk in the following terms:
“The nature of the risk is best expressed by the term ‘unacceptable risk’. It is an evaluation of the nature and degree of the risk and whether, with or without safeguards, it is acceptable.” [19]
[19] See Slater & Light [2013] FamCAFC 4 at [37]
The unacceptable risk test is a means of balancing the benefits arising for a child of interacting with a parent, with possible detriments arising from exposure to that parent. Essentially, the court should not grant time to a parent with a child, if the situation envisaged would expose the child concerned to an unacceptable risk of suffering some form of harm and abuse.
The parties have previously agreed that they should have equal shared parental responsibility for X and Y. In this context, they are required to consult with one another in respect of all major long-term decisions pertaining to the children. Pursuant to section 4 of the Act, this includes decisions pertaining to the education of their children. At this juncture, the prospects of the parties agreeing upon a school for X seem extremely remote.
The mother has been the children’s main provider of care for many years. The children also have a significant level of relationship with their father with whom they have regularly interacted in the lengthy period since their parents separated. Ms K’s report clearly indicates the significance of X and Y’s relationship with both their parents and that their respective parental relationships are both beneficial and meaningful.
In these circumstances, at this stage, in my view, there should be no changes to these long standing parenting arrangements for the children. However, in the longer term, given the complexity of the case, it is necessary these issues be subject to further examination at a final hearing stage, given the controversy surrounding Mr A and the fact that Ms Vickary concedes that she does not believe that he continues to represent any threat to the children concerned and, to the contrary, the children are anxious to resume their relationship with him.
In these circumstances, at this interim stage, the court’s focus must be on protective concerns so far as X and Y are concerned, particularly in the context of the mother’s proposed move to (omitted), which is where Mr A is currently living with A. In my view, it is the fundamental responsibility of the court to examine the potential risks which may arise for the children from such a move, notwithstanding its geographic modesty. In this context, as indicated above in my view, it must be regarded as highly significant that Ms Vickary acknowledged the potential threat represented by Mr A to the children in the earlier concluded proceedings.
Cases involving allegations of sexual abuse against children pose particular difficulties for the court. This is particularly so in cases involving historical allegations, where the child concerned may have given different accounts of what allegedly happened to different interlocutors, in differing circumstances and there is little or no objective or independent evidence available.
In these circumstances, the only individuals who are aware precisely what occurred are the alleged perpetrator who, for obvious reasons, may be disinclined to give an accurate account and the child victims, who are likely to be intellectually immature and conflicted emotionally by what has occurred. As a consequence, it may be impossible for the court many years after the incidents complained of to get to the bottom of what occurred.
It is horrifying to consider that any adult would actively do anything to harm a child with whom he or she shares a home or a close relationship. However, regrettably, the experience of the court is that parents and those associated with them do abuse their children. It is equally horrifying to consider that a parent would consciously fabricate complaints of abuse or hysterically overreact to some commonplace incident or childhood mishap, in an effort to derail a parent/child relationship.
It is frequently the case that allegations of child abuse (and subsequent allegations that some manipulation of the child in question has occurred in order to secure some form of damaging disclosure) occur in circumstances where the parents concerned have little previous parenting relationship together and communicate poorly, if at all, because of antipathy and suspicion.
Both these circumstances are present in the current case to a marked degree. The relationship between Ms Vickary and Mr Winch is marked by flawed communication and mutual antipathy. Ms Vickary asserts that Mr Winch manipulated the children to complain against Mr A; Mr Winch asserts that Ms Vickary is incapable of seeing Mr A for what he is and protecting the children from him.
For obvious reasons, such circumstances provide fertile ground in which words or actions can be misconceived, misunderstood or indeed manipulated. Regrettably, it is also not unknown for allegations of sexual abuse to be made for tactical or mischievous reasons. It may be difficult to differentiate between these various scenarios and in some cases there may be a conflation of them.
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.”[20]
[20] See Per Fogerty J in N & S and the Separate Representative (1996) FLC 92-655 referred to in W & W (supra) at [95]
In W and W [Abuse allegations: unacceptable risk][21] the Full Court summarised a number of authorities dealing with abuse allegations. I acknowledge that the considerations delineated are more relevant to final hearing situations. However, in my view, they remain a useful yardstick to assist the court in assessing whether an unacceptable risk arises in any particular parenting situation. They include the following:
[21] See W and W [Abuse allegations: unacceptable risk] [2005] FamCA 892
·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 expert evidence has been provided;
·Are there satisfaction explanations for the allegations apart from abuse;
·What are the likely future effects on the child?
The court must balance the risks to a child of having a potentially worthwhile relationship artificially truncated or curtailed, on the basis of possibly spurious or doubtful evidence, with the possible risks of a child suffering untold emotional harm or trauma as a consequence of being re-exposed to an individual who has abuse that child. All these dilemmas are present in the current matter.
In this context, I noted that the children concerned have made complaints of abuse which were taken seriously by police and child protection. These complaints led to criminal charges. As such, the children’s complaints cannot, in my view, be regarded as being gratuitous in any whatsoever.
I note, however, that there is significant controversy regarding the children’s motivation – was it a misconceived device to secure their parents’ reconciliation or were the disclosures made for more disturbing reasons. This controversy cannot be resolved definitively, at this stage, if at all. However, notwithstanding this situation, the children’s disclosures must remain potent.
The family report of Ms K, albeit that her conclusions have not been subject to any extensive scrutiny, did not dismiss the probity of the children’s allegations. To the contrary, it was on the basis of Ms K’s recommendations that the injunction regarding Mr A was made.
I have not been provided with full details of the allegations said to have been made by the children. It is Mr Winch’s evidence that the prosecutor concerned was of the view that what the children had revealed supported the laying of criminal charges. By necessary implication, this indicates that the children did provide a significant level of detail about the matters which became the subject of the criminal charges.
Significantly, within the compass of the earlier proceedings, Ms Vickary indicated her view that what X and Y had revealed about Mr A was true. She deposed that she had reached this view after discussing matters with police and after talking with the children herself. As a consequence of these matters, she arranged for the intensive process of counselling which has involved X and Y.
If X and Y have been subject to sexual abuse by Mr A over a long period of time, it is horrifying to consider them having to interact with him once again. However, at this stage, the precise extent of any psychological sequelae arising for the children is, as yet, unclear to me in the absence of expert evidence.
In all these circumstances, I consider that it represents an unacceptable risk for the court to take for it to contemplate X and Y to be re-exposed to Mr A. The next question is whether the measures proposed by the mother represent a proportionate response to the degree of risk arising at this stage. Essentially, it is her case that the continuation of the injunction, notwithstanding her move to (omitted), will adequately protect the children, pending further investigations.
Mr Winch does not agree, pointing to the small population of (omitted); the close relationship between Ms Vickary and Mr A; and her apparent dismissal of the children’s claims as being the result of fabrication. At this juncture, I consider that there is a significant degree of moment to Mr Winch’s concerns.
(omitted) is small in population. In my view, Ms Vickary has not detailed with precision where she proposes she will live there and, more importantly, how she will avoid the children coming into contact with Mr A. I am concerned at this lack of precision in her case.
As a consequence, I do not consider it to be in the children’s best interest for them to move to (omitted) at this interim or provisional stage of proceedings. In my assessment, the proposed move has very significant implications for the children concerned and must be subject to the court’s more thorough scrutiny at the final hearing stage. In my view, the proposed move at this stage represents an unacceptable degree of risk for both X and Y. For these reasons this aspect of the mother’s interim application is dismissed.
I hold considerable reservations, so far as the emotional wellbeing of X and Y is concerned, at the prospect of there being further litigation about their parenting arrangements. However, given the unresolved and significant controversies arising between their parents, such litigation cannot be avoided. I also have very significant concerns that this litigation may be incapable of resolving the central controversy in the case which centres on Mr A.
At this stage, it seems unavoidable that an independent children’s lawyer should be re-engaged for X and Y, so that he or she can assess the evidence available in the case and make appropriate submissions to the court. More importantly, such a representative can gauge whether it is appropriate for an expert to re-engage with the children in order for a further family report be prepared. In this context, I note the extensive level of involvement of the Centacare counsellor with the children and the multiplicity of occasions they have been questioned about Mr A.
I will also allocate a date for the final hearing of the matter. I will allow three days at the earliest stage available to me, which is currently in mid-October of 2018. I appreciate that this is some time away.
In the meantime, in my view, the children should continue to live with their mother in the (omitted) area or the (omitted) suburbs of Adelaide, rather than in (omitted). If Ms Vickary considers that she has no alternative other than to move to (omitted), the children should live with their father until the final hearing.
The remaining issue outstanding is which school the children should attend. This is a vexed issue, given the paucity of evidence available to me, notwithstanding the controversy between the parties. I have not been provided with any evidence concerning the merits of (omitted) High School, apart from its obvious convenience for Mr Winch. In addition, Ms Vickary has not provided me with any alternative to her preferred option of (omitted) High School, which I have over-ruled.
In this regard, I suspect both parties would adopt what was said by the initial judicial decision maker in Eden & Eden-Proust as follows:
“… it would be fair to say that most reasonably minded people in the community would hold to the view that, generally, absent any agreement to the contrary, a child should attend a school close to his or her primary place of residence. Obviously, travelling time to and from school is dead time for the child and takes away from him or her the opportunity to use such time for more productive/enjoyable purposes, such as school work or sporting activity.”
If the parties are unable to agree on an appropriate school for X in the fourteen days following the publication of these reasons for judgment, after exchanging proposals with one another and in the light of any relevant decision by Ms Vickary regarding her personal relocation to (omitted), it is my view that the choice of school should be determined by the parent who is providing the primary residence for X and Y prior to trial.
If Ms Vickary elects to remain living in the (omitted) area, in the absence of agreement between the parties, I will direct that she select the school for X, provided it is within a five kilometre radius of the (omitted) Primary School, which Y should continue to attend. If Ms Vickary determines that her circumstances compel her to move to (omitted) forthwith and therefore the children move to live with Mr Winch, I will order that he be entitled to enrol X at the (omitted) High School pending final hearing.
I regret that it has taken many paragraphs and some time to complete these reasons for judgment. However the case is not without its complexities and it raises many issues. The period of Christmas has also intervened. The respective offices of the parties’ solicitors were closed in the days shortly before Christmas. In these circumstances, delivery of judgment had to be delayed until the New Year.
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 ninety one (191) paragraphs are a true copy of the reasons for judgment of Judge Brown
Date: 12 January 2018
[3] See affidavit of Guy Harley filed 8 December 2017 at page 6
[22] See Eden & Eden-Proust [2011] FamCAFC 138 at 2
Key Legal Topics
Areas of Law
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Family Law
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Civil Procedure
Legal Concepts
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Appeal
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Injunction
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Jurisdiction
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Remedies
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Costs
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