WALLACE & WALLACE

Case [2018] FamCA 151

FAMILY COURT OF AUSTRALIA

WALLACE & WALLACE [2018] FamCA 151

FAMILY LAW – CHILDREN – With whom a child lives and spends time – Best interests of the child – Whether either the mother or the father presents as an unacceptable risk to the children – Where the father asserts that the mother is an unacceptable risk to the children – Where the father opposes orders for the mother to spend time with the children – Where each party seeks sole parental responsibility – Where equal shared parental responsibility is untenable – Where the ICL recommended a three month suspension of the children’s time with the father – Meaning of “meaningful relationship” – Where the mother recognises that it is in the best interest of the children to have a meaningful relationship with the father – Where a meaningful relationship has been established between the mother and the children – Where the father does not consider that the children would benefit from a significant and substantial relationship with the mother

FAMILY LAW – CHILDREN – Family violence – Allegations of child abuse and family violence – Where there is an intervention order that is inconsistent with the orders to be made – Consideration of section 68P of the Family Law Act 1975 (Cth) – Where the father has used intervention orders in his sole name and in the names of the children in a punitive fashion to punish the mother – Where the evidence does not support a finding that the children have been subject to abuse – Where the mother contends that the father presents as a psychological risk to the children – Whether the father contends that the mother would physically harm the children – Whether the children are at risk in the care of either the mother or the father – Consideration of unacceptable risk to the children – Where it is found that the father was deliberately manipulative in attempting to cause the children the make complaint and allegations – Where the evidence does not support a finding that the mother is a risk to the children

Evidence Act 1995 (Cth) s 55
Family Law Act 1975 (Cth) div 12A, ss 60B, 60B(1), 60B(2), 60CA, 60CC, 60CC(2), 60CC(2)(a), 60CC(2A), 60CC(3), 61DA, 61DA(2), 61DA(3), 61DA(4), 65DAA, 68Q, 68P, 69ZN, 69ZT(1)
Family Law Rules rr 15.13
APPLICANT: Ms Wallace
RESPONDENT: Mr Wallace
INDEPENDENT CHILDREN’S LAWYER: Legal Services Commission of SA
FILE NUMBER: ADC 3290 of 2015
DATE DELIVERED: 14 March 2018
PLACE DELIVERED: Adelaide
PLACE HEARD: Adelaide
JUDGMENT OF: Berman J
HEARING DATE: 11 – 14, 18 – 19 December 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Dickson
SOLICITOR FOR THE APPLICANT: Pascale Legal Barristers & Solicitors
COUNSEL FOR THE RESPONDENT: Ms Smith
SOLICITOR FOR THE RESPONDENT: Daniel John Lawyers
COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Horvat
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Services Commission of SA

Orders

  1. That the mother have sole parental responsibility for C born … 2008 and D born … 2011…

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AGLC
WALLACE & WALLACE [2018] FamCA 151
Case
[2018] FamCA 151
Decision Date

CaseChat Overview and Summary

This case concerned parenting orders sought by a mother and father in relation to their two children. The dispute involved allegations of family violence and child abuse, with each party asserting that the other presented an unacceptable risk to the children. The father opposed orders for the mother to spend time with the children, and both parties sought sole parental responsibility, deeming equal shared parental responsibility untenable.

The court was required to determine the paramount consideration of the children's best interests, specifically whether either parent posed an unacceptable risk to them. This involved assessing allegations of child abuse and family violence, and considering the impact of an existing intervention order that was inconsistent with potential orders. The court also had to consider the meaning of a "meaningful relationship" in the context of the children's welfare and the father's assertion that the children would not benefit from a significant relationship with the mother.

Berman J applied the principles established in *M v M* and *Vasser v Taylor-Black*, which emphasise that the paramount consideration in parenting proceedings is the welfare of the child. The court noted that while allegations of abuse are serious, the ultimate issue is what order best promotes the child's interests. The court found that the father had used intervention orders punitively and that his evidence did not support a finding that the children had been subject to abuse. Conversely, the court found that the father had been deliberately manipulative in attempting to cause the children to make allegations against the mother, and that the evidence did not support a finding that the mother posed a risk to the children. The court also considered the importance of maintaining a meaningful relationship between the children and both parents, provided it was in their best interests.

The court ordered that the mother have sole parental responsibility for the children, with a requirement to consult the father on major decisions regarding their health and education, but with the mother retaining the final decision-making power. The children were ordered to live with the mother, and specific time-spent-with orders were made for the father, commencing after a 28-day period. The court also revoked an intervention order against the mother, limited communication between the parties to email except in emergencies, and made various injunctions restraining specific behaviours, including physical discipline, denigration of the other parent, and social media posts. Handovers were to take place at a police station, and the father was restrained from attending handovers unless otherwise agreed. The appointment of the Independent Children's Lawyer was discharged.

Orders

Orders of the court

1.

That the mother have sole parental responsibility for C born … 2008 and D born … 2011 (“the children”) PROVIDED that there be a requirement that she will advise the father in writing (electronically or otherwise) and provide her view about any major issue affecting the children’s health (including dental) or the children’s education and shall consult with the father about such issues, but if no agreement is reached between the parties THEN the mother shall make the final decision and advise the father in writing of that decision.

2.

That the children live with the mother.

3.

That at the conclusion of twenty eight (28) days from the date of this order, the children spend time with the father as follows:-

(a) Commencing 12 April 2018 and continuing each alternate weekend thereafter from the conclusion of school Friday (or 3 pm if a non-school day) until the commencement of school Monday (or 9 am if a non-school day);

(b) For one half of the short term school holiday periods from the conclusion of school on the last day of term until 5 pm on the middle Saturday;

(c) For one half of the long Christmas school holidays from the conclusion of school on the last day of term until 5 pm on the following Friday and each alternate week thereafter;

(d) For Father’s Day from 9 am until 5 pm if not already in the father’s care PROVIDED that the children spend time with the mother from 9 am until 5 pm on Mother’s Day if not already in the mother’s care;

(e) For the father’s birthday from 9 am until 5 pm if a non-school day and if a school day from the conclusion of school until 7 pm PROVIDED that the said children spend time with the mother on the mother’s birthday from 9 am until 5 pm if a non-school day or if a school day from the conclusion of school until 7 pm if not already in the mother’s care;

(f) From 3 pm Christmas Eve until 3 pm Christmas Day in 2018 and each alternate year thereafter PROVIDED that the children will spend time with the mother from 3 pm Christmas Day until 5 pm Boxing Day on each alternate year thereafter;

(g) From 3 pm on Christmas Day until 5 pm on Boxing Day in 2019 and each alternate year thereafter PROVIDED that the said children will spend time with the mother from 3 pm Christmas Eve until 3 pm Christmas Day 2019 and each alternate year thereafter;

(h) For Easter 2019 from 5 pm Maundy Thursday until 5 pm Easter Saturday and each alternate year thereafter PROVIDED that the said children will spend time with the mother from 5 pm Easter Saturday until 5 pm Easter Monday in 2019 and each alternate year thereafter;

(i) For Easter 2020 from 5 pm Easter Saturday until 5 pm Easter Monday and each alternate year thereafter PROVIDED that the said children will spend time with the mother from 5 pm Maundy Thursday until 5 pm Easter Saturday in 2020 and each alternate year thereafter;

(j) On each of the children’s birthdays for a period of at least three (3) hours at times to be agreed between the parties if the children are not already with the father PROVIDED that the children will spend time with the mother on each of their birthdays for a period of at least three (3) hours at times to be agreed between the parties if not already with the mother; and

(k) Such other times as may be agreed between the parties.

4.

That handovers take place inside the Suburb E Police Station or such other place as may be agreed between the parties.

5.

That communication between the parties be limited to email communication except in the case of emergency.

6.

That the mother be at liberty to enrol the children in Suburb O Primary School to occur not earlier than the commencement of the third school term.

7.

That pursuant to section 68P of the Family Law Act 1975 (Cth), the intervention order made on 22 January 2016 against the mother and listing the said children as protected persons be revoked.

8.

That the parties be at liberty to attend all school and extra-curricular events that parents would ordinarily be invited to attend including but not limited to sports days, concerts, parent teacher interviews and the like PROVIDED that they shall each advise the other in writing of their intention to attend.

9.

That both parties be at liberty to receive copies of all correspondence from the said children’s school and extra-curricular activities including but not limited to newsletters, bulletins, photographs and the like with the mother to provide all necessary authority to the said school to enable the father to receive school reports, newsletters, memorandum and other information pertaining to the children’s education.

10.

That injunctions be granted and each party be restrained from:-

(a) physically disciplining the children;

(b) discussing these proceedings in the presence of the said children or allowing anyone else to do so;

(c) denigrating the other party, the other party’s family or the other party’s partner in the presence of the said children or from allowing anyone else to do so;

(d) posting on social media about the other party, the other party’s family, the other party’s partner or these proceedings in any way whatsoever;

(e) taking the children to any psychologist, counsellor, social worker or mental health practitioner without the consent of the other parent first being obtained in writing SAVE AND EXCEPT for Ms G, clinical psychologist or such other counsellor or therapist as may be recommended by her;

(f) photographing, recording, videoing or keeping the other party under surveillance;

(g) changing the children’s school without the prior consent of the other parent first having been obtained in writing.

11.

That the father be restrained from attending any handover for the children unless the parties agree otherwise.

12.

In the event of a medical emergency involving the said children the parent with whom the children are spending time with shall notify the other parent forthwith and allow the other parent to attend upon the said child.

13.

The parties keep each other informed as to their current telephone number, email address and postal and residential address.

14.

That the appointment of the Independent Children’s Lawyer be discharged.

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

Background

Background to the litigation

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Evidence

Evidence Before The Court

In Vasser v Taylor-Black (2007) FLC 93-329 the Full Court considered that the High Court decision in M v M (supra) had become the “touchstone” of the principles to be applied in cases of asserted unacceptable risk of any kind. Their Honours quoted, with approval, the following passages from M v M (supra) at pages 81,673-75:-In proceedings under Pt VII of the Act in relation to a child, the Court is enjoined to ‘regard the welfare of the child as the paramount consideration’ (sec 60D). The paramountcy of this consideration in proceedings for custody or access is preserved by sec 64(1). The consequence is that the ultimate and paramount issue to be decided in proceedings for custody of, or access to, a child is whether the making of the order sought is in the interests of the welfare of the child. The fact that the proceedings involve an allegation that the child has been sexually abused by the parent who seeks custody or access does not alter the paramount and ultimate issue which the Court has to determine, though the Court's findings on the disputed allegation of sexual abuse will naturally have an important, perhaps a decisive, impact on the resolution of that issue. But it is a mistake to think that the Family Court is under the same duty to resolve in a definitive way the disputed allegation of sexual abuse as a Court exercising criminal jurisdiction would be if it were trying the party for a criminal offence. Proceedings for custody or access are not disputes inter partes in the ordinary sense of that expression: Reynolds v Reynolds(1973) 47 ALJR 499; 1 ALR 318; McKee v McKee (1951) AC 352, at pp 364-365. In proceedings of that kind the Court is not enforcing a parental right of custody or right to access. The Court is concerned to make such an order for custody or access which will in the opinion of the Court best promote and protect the interests of the child. In deciding what order it should make the Court will give very great weight to the importance of maintaining parental ties, not so much because parents have a right to custody or access, but because it is prima facie in a child's interests to maintain the filial relationship with both parents: cf J v Lieschke (1987) 162 CLR 447, at pp 450, 458, 462, 463-464.Viewed in this setting, the resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the Court's determination of what is in the best interests of the child. The Family Court's consideration of the paramount issue which it is enjoined to decide cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse. The Family Court's wide-ranging discretion to decide what is in the child's best interests cannot be qualified by requiring the Court to try the case as if it were no more than a contest between the parents to be decided solely by reference to the acceptance or rejection of the allegation of sexual abuse on the balance of probabilities. In considering an allegation of sexual abuse, the Court should not make a positive finding that the allegation is true unless the Court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v Briginshaw (1938) 60 CLR 336, at p 362. There Dixon J said:“The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters “reasonable satisfaction” should not be produced by inexact proofs, indefinite testimony, or indirect inferences.” His Honour's remarks have a direct application to an allegation that a parent has sexually abused a child, an allegation which is often easy to make, but difficult to refute. It does not follow that if an allegation of sexual abuse has not been made out, according to the civil onus as stated in Briginshaw, that conclusion determines the wider issue which confronts the Court when it is called upon to decide what is in the best interests of the child. …In resolving the wider issue the Court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assessing the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child's welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access. In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access. Even in such a case, however, there may be a risk of disturbance to a child who is compulsorily brought into contact with a parent who has sexually abused her or whom the child believes to have sexually abused her. But that is not the issue in this case. … (our emphasis)

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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