WALLACE & WALLACE
[2018] FamCA 151
•14 March 2018
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
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.
That the children live with the mother.
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.
That handovers take place inside the Suburb E Police Station or such other place as may be agreed between the parties.
That communication between the parties be limited to email communication except in the case of emergency.
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.
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.
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.
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.
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.
That the father be restrained from attending any handover for the children unless the parties agree otherwise.
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.
The parties keep each other informed as to their current telephone number, email address and postal and residential address.
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.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Wallace & Wallace has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT ADELAIDE |
FILE NUMBER: ADC 3290 of 2015
| Ms Wallace |
Applicant
And
| Mr Wallace |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
The proceedings between Ms Wallace (“the mother”) and Mr Wallace (“the father”) involved parenting orders and settlement of property. Orders were made by consent on 11 December 2017 which resolved the parties’ interest in modest property.
The unresolved proceedings relate to the future parenting arrangements for C born in 2008 (“C”) and D born in 2011 (“D”) (collectively “the children”).
By Further Amended Initiating Application filed 14 November 2017, the mother seeks parenting orders in respect of the children. In summary, the final orders sought by the mother are:-
(a)That she have sole parental responsibility for the children, that they live with her and spend time with the father each alternate weekend from Friday to Monday, an overnight in the intervening week and half of school holidays both as to the short terms holidays and also the Christmas school holidays;
(b)That the mother keep the father informed of the children’s progress and significant decisions in relation to their welfare;
(c)Provision for the children to spend time with the parties on special occasions including Mother’s Day and Father’s Day, the birthdays of the parties and the children, Christmas and Easter periods;
(d)That the children be enrolled in the mother’s chosen primary school;
(e)That the parties be restrained from physically disciplining the children, changing the children’s school without the written consent of the other parent, taking the children to any mental health practitioner without the written consent of the other parent or involving them in the litigation and from posting information on social media about the proceedings, the other party or the children.
In the alternative, the mother seeks that the parties have equal shared parental responsibility and live with each parent on a week about basis.
By Amended Response filed 7 December 2017, the father opposes the orders sought by the mother. The final orders sought by the father can be summarised as follows:-
(a)That he have sole parental responsibility for the children and that they live with him;
(b)That all previous orders for the mother to spend time with the children be suspended;
(c)That the children remain enrolled at a school near his residence;
(d)That he will keep the mother informed of major medical issues involving the children and will provide appropriate authority for any school or health professional attended upon by the children to provide the mother with information or reports as to their progress, development and welfare.
At the conclusion of the proceedings the parties agreed to interim parenting arrangements pending delivery of judgment. The orders provided for the children to spend extended time with the mother over the December 2017/January 2018 Christmas school holiday period, on Christmas Day and for alternate weekend time and intervening weekday time to recommence on 2 and 7 February 2018 respectively.
The consent order suggests the father may be more supportive of the children having a relationship with the mother than was apparent from the orders sought by him in his Response and Case Outline document. It is hoped that the father has resiled from the strict position taken in those documents and he would now consider the children spending time with the mother.
An Independent Children’s Lawyer (“ICL”) was appointed to represent the interests of the children. The ICL relies upon a Case Outline document containing a summary of issues tendered at the commencement of the hearing and reserved the right to make submissions as to the orders sought at the conclusion of the evidence. Counsel for the ICL tendered a minute of order at the conclusion of the proceedings which provided for the mother to have sole parental responsibility for the children and that they live with her.
The ICL considered that the children should resume time with the father subject to a period of not less than 3 months from the date of any order during which the children will spend no time with him.
The orders proposed by the ICL are significantly more restrictive than as sought by the mother.
The mother relies upon the following documents:-
(1)Further Amended Initiating Application filed 14 November 2017.
(2)Trial Affidavit of mother filed 10 November 2017.
(3)Affidavit of Ms G filed 10 November 2017.
(4)Affidavit of Mr Southey filed 10 November 2017.
(5)Affidavit of Mr P filed 10 November 2017.
The father relies upon the following documents:-
(1)Amended Response filed 7 December 2017.
(2)Trial Affidavit of father filed 7 December 2017.
(3)Affidavit of Mr A Wallace filed 7 December 2017.
(4)Affidavit of Mr Q annexing report of Dr R filed 5 April 2017.
(5)Affidavit of Mr Q annexing report of Dr R filed 29 August 2017.
The ICL did not formally file any documents but rather submitted that the Court should consider the following reports:-
(1)Reports of Mr S, clinical psychologist, dated 30 November 2015 and 10 May 2015.
(2)Dr T, consultant psychiatrist, dated 25 February 2016.
(3)Family Assessment Report of Ms I dated 4 April 2016.
(4)Reports of Ms G dated 29 August 2016, and 5 December 2016.
(5)Reports of Dr R dated 13 March 2017 and 21 August 2017.
(6)Family Assessment Report of Mr U, family consultant dated 6 December 2017.
The Court heard evidence from Mr U (“the family consultant”) and Ms G. Whilst reference was made to the other reports during the course of the proceedings they were not the subject of tender.
Counsel for each of the parties and the ICL relied upon a Case Outline document.
The final hearing was heard over six days. It concluded on 19 December 2017. At the commencement of the proceedings the parties sought orders in respect of both parenting and property matters, however, consequent upon the settlement of property by orders made 11 December 2017, the proceedings were conducted pursuant to s 69ZN of the Family Law Act 1975 (Cth) (“the Act”).
Notwithstanding the application of the provisions of Division 12A of the Act, consideration was given to the trial affidavits of each of the parties as to matters of admissibility.
By reference to those parts of the Evidence Act 1995 (Cth) and Rule 15.13 of the Family Law Rules (“FLR”), objections to affidavit material were considered.
SUMMARY
The parties are mistrustful of each other and have little ability to communicate.
There is no agreement between the parties as to parental responsibility and whilst it represents an inadequate summary of the respective positions of the parties, the chasm that exists between them is demonstrated by the father’s argument that the mother had physically harmed the children, that she continues to do so and as such they are at risk in her care. The mother denies the father’s allegations and contends that he does not have either the ability or the intention to encourage the children to maintain a relationship with her and given his conduct of manipulating police intervention to the detriment of the mother, it is the father that presents as an emotional risk to the children.
The current arrangements for the children to live with the father and spend time with the mother are contained in orders made 12 October 2017 where until further order they live with the father and spend time with the mother on each alternate weekend from the conclusion of school (or 3pm if a non-school day) until the commencement of school Monday (or 12 noon if a non-school day) and on the intervening Wednesday from the conclusion of school (or 3pm if a non-school day) to the commencement of school on Friday (or 10am if a non-school day).
The ICL sets out a summary of the issues in the following terms:-
(1)That there is an intractable dispute between the parties.
(2)That there is no communication between them and no sign that that situation is likely to improve.
(3)The parties do not agree on parental responsibility. Each party seeks an order for sole parental responsibility.
(4)The father continues to press allegations of the mother’s ongoing physical abuse of C.
(5)The mother presses her allegation that the father undermines the children’s relationship with her.
(6)The father considers that the mother poses an unacceptable risk to the children due to the alleged physical violence towards C.
(7)The mother considers that the father poses an unacceptable risk to the children due to psychological abuse.
There are issues raised as to the mental health of the parties, the extent to which the wishes and views of the children should be given weight and depending upon with whom the children should ultimately primarily reside, the parties remain in conflict as to the school at which they should attend.
BACKGROUND
The father was born in 1977 and is 40 years of age. He is currently in receipt of a Centrelink benefit comprising a parenting payment as a single person, a family tax benefit and a carer’s allowance.
The mother was born in 1978 and is 39 years of age. She works in administration and currently is in a relationship with Mr P. The mother and the children live with Mr P in his home in the northern suburbs. Their relationship has been ongoing since December 2015.
The parties were married in 2006 and separated on 24 January 2015.
The father has not re-partnered and resides with the children on a large property owned by the paternal grandparents at V Town.
The father was a self-employed health provider and intends to resume his business in 2018.
The parties both worked during cohabitation. They arranged their household to suit their separate working commitments. They do not agree on the care arrangements for the children. The father does not accept that the mother was the children’s primary carer and he refers to the mother suffering from major depression and a December 2013 Centrelink application which nominates him as the mother’s carer.
I do not consider that much turns on the early history of the parties and the care arrangements for the children.
Following separation in January 2015, the mother was unable to spend time with or communicate with the children consequent upon an interim intervention order made on 24 January 2015 naming the father and the children as protected persons and prohibiting the mother from coming into contact with the father or the children. The interim intervention order made no provision for any exemption pursuant to an order that might be made under the Act.
C alleged that the mother had grabbed him and subjected him to assault. The father conducted a video recording with C on 24 January 2015 transcribed as follows:-
[The father]: Buddy what happened last night, tell me.
[C]: Mum was just grabbing me.
[The father]: Tell me more about it mate.
[C]:Well I, I was just in my bed…then mum started grabbing me like she does usually hey dad.
[The father]: What did you say mate.
[C]:I, I only said der mum. (The father contends the child said “dam Mum”)
[The father]: Ok mate.
The mother agreed that she had grabbed C by the arms, but explains her conduct by his refusing to go to bed and being defiant to the mother’s direction. She concedes that she carried him to his bedroom and he was smacked on the bottom.
The mother considers that C recognised he had been defiant and she considers that he agreed to adopt a more obedient and less contrary position to the mother’s direction in the future.
For reasons best understood by the mother, she pleaded guilty to a charge of aggravated assault and entered into a good behaviour bond for a period of 12 months with no conviction recorded.
The final intervention order was confirmed 22 January 2016 and is limited to the children as protected persons. The final intervention order enables the children and the mother to come into contact with each other pursuant to an order of this Court.
As a separate process, the mother consented to a final intervention order in favour of the father on 15 July 2015 which relates to an argument that had occurred between the parties resulting in the mother “recklessly” throwing a mobile phone in his direction.
In July 2015 and following the final intervention order in favour of the father, the mother completed a number of recognised parenting courses.
On 3 September 2015 the mother commenced proceedings seeking both final and interim parenting orders. She had not spent time with the children since separation.
There were difficulties with the children’s relationship with the mother. It appeared that the children had become estranged from the mother and the psychologist tasked to prepare the first family assessment report (dated 4 April 2016) proposed that effort should be made to re-establish a relationship between the mother and the children with an appropriately qualified therapist instructed to commence reunification counselling.
Orders were made on 24 May 2016 that the parties engage with Ms G, psychologist, to provide reunification therapy and that Ms G prepare a report as to the progress of the therapeutic intervention.
The proceedings were adjourned to 31 August 2016.
The sessions between the mother, the children and Ms G took place between June and November 2016.
The sessions were further continued pursuant to orders made 31 August 2016, with provision that required the father to facilitate the children being taken to Ms G by the maternal grandparents. The father was ordered to positively encourage the children to refer to the mother as “Mum or Mummy” and not [by her first name] or any other name.
During this period the father was supported by his former partner Ms H. She became involved in the proceedings and filed an affidavit in support for the father.
In November 2016 the father was charged with the aggravated assault of Ms H and was the subject of an intervention order which named his former partner as a protected person. He was also the subject of a detention order.
The father was not able to care for the children and a private arrangement was put in place for the children’s care to transition to the paternal grandparents. Following his release on bail, the father lived in the home of the paternal grandparents and their care of the children was confirmed by order made on 15 December 2016.
Following a transfer of the proceedings to this Court, orders were made on 9 February 2017 which provided for the children to spend time with the mother initially supervised, with the first overnight time occurring on 25 and 26 February 2017.
On 7 April 2017 the paternal grandparents withdrew from the proceedings with the father resuming the children’s primary care and the children spending substantial and significant time comprising five nights per fortnight with the mother.
A significant issue in the proceedings involves the circumstances surrounding the police attending at a reunification counselling session with Ms G on 9 November 2016 and arresting the mother on a charge of breaching of the restraining order. The mother contends that the father manipulated the circumstances and arranged for her arrest. The father denies the mother’s claim and the parties are not in agreement as to whether the father was observed to film both the mother’s arrest and also Ms G.
On 12 May 2017 the mother was charged with the aggravated assault of C arising from her grabbing him to prevent him from running on the road. Until the police had investigated the matter and withdrew the proceedings, the mother was arrested and held on remand for seven days.
Part of the final orders being sought by the mother is the discharge pursuant to s 68P of the Act of the intervention order made on 15 July 2015 naming the father as a protected person and the intervention order made on 22 January 2016 listing the children as protected persons. The intervention order in respect of the father was the subject of revocation by consent in orders made 18 December 2017. The intervention order in favour of the children continues.
LIST OF CRIMINAL PROCEEDINGS INVOLVING THE MOTHER
The criminal proceedings involving the mother are as follows:-
… 2015 Mother charged with aggravated assault of C. Mother pleaded guilty and placed on a bond without a conviction being recorded.
… 2015 Mother charged with aggravated assault on the father and pleaded guilty without conviction being recorded.
… 2016Mother charged with contravention of an intervention order arising from her parents dropping a letter into the father’s letterbox. The matter was finalised, the charge withdrawn and the mother was awarded costs.
13 April 2017 Mother charged with contravention of an intervention order against the father by him alleging that she had said hello to him and that she came within five metres of him at a school assembly. The charge has been withdrawn.
13 April 2017 Mother charged with contravention of an intervention order against both C and D by saying hello to each of the children and coming within five metres of them at a school assembly. These charges have been withdrawn.
14 April 2017 Mother charged with contravention of an intervention order against the father in that she drove on a road within 20 meters of the home of the paternal grandparents. The charge has been withdrawn.
4 May 2017 Mother charged with contravention of an intervention order against C by attending at the children’s school sports day. The charge has been withdrawn.
4 May 2017 Mother charged with contravention of an intervention order against D by attending at the children’s school sports day. The charge has been withdrawn.
12 May 2017 Mother is charged with assaulting C. The charge has been withdrawn.
12 May 2017 Mother is charged with contravening a term of her bail agreement. The charge has been withdrawn.
The mother contends that the father has instigated each and every complaint to the police and has used the intervention order process to frustrate orders made in this Court for the children to spend time with the mother and for her attendance at school assembly and on other occasions.
FAMILY REPORT
The family report is dated 6 December 2017. At the date of assessment C was nine years of age and D six years of age. The family consultant was presented with almost the entire Court file and conducted interviews with the parties and observed their interaction with the children on 1 December 2017. The following recommendations appear in the report.
(1)That in the interim the children should remain with the father and there be no change to their current school.
(2)That further consideration of child protection records be considered and in particular to ascertain as to whether “these records support the notion of consistent child protection concerns regarding [the mother] then time spending, if it occurs at all, should be supervised”.
(3)If the child protection records do not support “a congruent and consistent history of child protection concerns” then the family consultant recommends that supervised time spending could be conducted with therapeutic counselling.
(4)That there be an updated family report in six to 12 months.
(5)That the children undergo counselling to include the parties at the professional discretion of the agreed therapist.
The report broadly supports the father’s proposal but is at odds with the position adopted by the mother and the ICL.
UNACCEPTABLE RISK
In M v M [1988] HCA 68 the Full Court gave consideration to the treatment of allegations of sexual abuse. The Full Court considered at [19] that treating an allegation of sexual abuse as the paramount consideration was an error.
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)
It is not suggested by the father that the children have been subject to sexual abuse, but he strongly contends that they are at risk of overt physical abuse by the mother. He refers to the mother’s history of offending and complaints made by the children, but in particular C, upon which the family consultant appears to have placed significant weight.
There remains some uncertainty as to whether the father has resiled from his long held view that the mother is not able to control her behaviour, becomes easily frustrated with the children’s conduct and readily resorts to aggression as part of her method of discipline.
The corollary to the father’s concerns arises from the mother’s assertion that the perception of her aggressive interaction with the children is misconceived and arises from the father manipulating the circumstance, but in particular the family violence justice system, with the clear purpose of fracturing the children’s relationship with the mother.
The mother contends that it is the father who presents as an unacceptable risk to the children by reason of psychological and emotional harm being caused to them.
THE EVIDENCE
The mother
The mother’s trial affidavit was supplemented by examination in chief.
She confirmed her proposal that the children attend Suburb O Primary School. The school confirmed that the children are accepted for the 2018 academic year.
She has also received communication from the police that the outstanding breaches of the intervention order will be withdrawn. They related to the assertion that the mother breached the intervention orders by attending at the children’s school assembly, their sports day and driving past the home of the paternal grandparents.
The mother contends that there are no further proceedings on foot.
Following the children spending time with the mother on the weekend of 24 to 27 March 2017, the father alleges that the children reported being scared in the mother’s home and that she had acted aggressively towards them, was angry and shouted at them.
The father contends that D had a bruise on the outside of her left hand and records the child’s report “that’s where [mother’s first name] grabbed me and it really hurt”. The children allegedly call the mother by her first name. C apparently agreed with the assertion. He then showed the father his left hand which the father considered displayed a fingernail scratch.
C also complained of being scolded by the mother’s partner because he was upset about C sending text messages to the father.
The father apparently called the police and after they left C alleges that he was assaulted by the mother. He sustained bruising to his ear, the back of his head and his jaw. The father reported the allegations to the police in a written statement. The mother denied that the events as promoted by the father occurred and observes that neither child had any obvious bruising. She considered that the weekend went well and the children were happy.
She does agree that C had sent text messages from her phone to the father in the following terms:-
“Hay Dad help [the mother] is not been good”.
“Dad help [the mother] as hurt us can you save us were at [Mr P’s] house”.
“Star Petrol station, [Suburb O], the way to [Mr P’s] house”.
The mother also stated that she had discovered the father had unilaterally changed the children’s school without her consent or any notice having been provided. The school selected by the father is close to where he and the children reside with the paternal grandparents. The distance between the mother’s home and the children’s school is problematic.
By reference to the report of Dr R dated 31 March 2017 forming annexure “DJW-2” to the affidavit of the father’s solicitor filed 5 April 2017, the mother denied that she had attended at the father’s home and threatened to kill him.
She did agree that she had been arrested by the police for attending at the father’s home, but this was in relation to the delivery of a letter rather than any overt threat to him.
The mother denied that there was any violent incident involving either the father or the children. In particular, she specifically denied the allegation that she had placed C in a headlock, had caused him to blackout or grabbed him by the throat.
The mother agreed that after C’s birth she suffered from post-natal depression. She considered that she had little support and her condition was managed with anti-depressant medication. C was clearly a difficult child. He had sleeping issues and the mother was candid in her admission that at times she became frustrated with his behaviour and difficult management. She denied that her frustration became anger.
A method of discipline was “time out”. She took advice from friends, family and online advice and support forums for parents.
The mother’s evidence on her observations of the children, but in particular C in his early childhood, was comprehensive. She agreed that he was a disobedient child, pushed the boundaries, but that he seemed to thrive with routine. At times she would resort to smacking C on his bottom or take his toys away. In 2015 she made a decision that there should be no more corporal punishment and certainly after the allegation of smacking in January 2015 she determined that she would not smack him again.
The mother specifically denied that she had ever observed bruises on C’s arms.
Consistent with her open presentation, the mother conceded that she had grabbed C by the arms to take him to his room for time out. It may have been forceful but was not intended to injure the child, nor did she consider that there was any bruising or injury as a result.
The mother did not resile from her plea of guilty to the charge of aggravated assault by excessive chastisement. She admitted that in the period prior to separation she threw a phone at the father. It is her recollection that it hit him in the head.
She denies the further allegation that she stabbed C in the arm with a pencil. When C is with the mother she considers that he is cooperative, but if he does not get his wish or way then he can become oppositional.
She considered the allegation that she had assaulted C when he ran onto the road. Her version of the incident was that after C had returned from school he took letters from the letterbox and threw them on the road. He was angry and she considered that he had placed himself in some danger. She grabbed him by the arm and steered him back into the home and into his bedroom. She agrees with the proposition that C resisted. She does not resile from her explanation of her physical engagement with the child.
There are a number of assertions made by the father that emanate from C concerning the mother’s poor parenting and treatment of him. A further complaint is that C is punished by the mother by her not giving him breakfast. The assertion is without foundation and the mother’s response challenging its accuracy is consistent with the evidence.
Whilst not required to answer, the mother was asked to consider why C presents as being afraid of her.
The mother’s response suggested that she thought C was concerned that she wanted to take him away from the father. She recognised that the children idolised the father and would do anything that he wished. She did not think that the children’s connection with the father was necessarily healthy or in their best interests.
The mother’s evidence was impressive in respect of both insight and her denial that she had ever punished the children by withholding food.
Of perhaps greater moment was the allegation that the mother had assaulted D resulting in her sustaining a blackened right eye. The allegation had previously been made by the father and appeared at [89] of the family consultant’s report. At the time of interview D was six years of age. The report suggests that the black eye had been sustained by D a number of years ago. The obvious issue is that for D to have any knowledge of it, she must have been told by someone. The implication is that the father had reinforced the belief, possibly erroneous, that she had sustained a black eye.
It was apparent from her evidence that the mother was troubled about the children’s ongoing schooling. She was disparaging of the father in moving the children without her consent, but recognised her proposal would require yet again another change. The problem for the mother is not that she considers the children current school to be unsuitable, but it represents for her a one and half hour trip. The mother works 9am to 5pm Monday to Friday.
It was difficult for her to arrange travel and pickup within the confines of her hours of employment.
The involvement in the proceedings of the father’s former partner Ms H has obviously been a cause of some consternation. Whilst they were together, Ms H was clearly supporting the father’s application for the primary care of the children and his orders that would see the children’s time with their mother significantly restricted.
It was also not lost on the mother that there was a certain irony in the father asserting that the mother presented as a risk to the children by reason of her violent and aggressive interaction with them in circumstances where there was a suggestion that he may have perpetrated family violence on Ms H that required police intervention and detention whilst he was psychiatrically stabilised.
The mother agreed that whilst she had been in some communication with Ms H, this had only occurred significantly after Ms H had separated from the father and had sought her own intervention order.
Ms H’s proceedings became difficult for the father in that the subject children and Ms H’s children had attended at the same school. The father relies upon the intervention order as the justification (at least in part) for moving the children to their current school.
The arrest of the mother at the office of Ms G is a significant issue in the proceedings. The parties have a very different version of the events.
The mother considered that when she arrived for the therapeutic intervention she saw the father waiting in his vehicle, filming her using an iPad or some other electronic device. Whilst inside the professional rooms of the therapist, the police entered and arrested her.
The father denies that he was filming, although the evidence of Ms G would appear to support the observations of the mother. For reasons that were not explained, neither party sought to produce or request either the electronic item which was allegedly used by the father or the film and video of the incident (if it exists).
The mother concedes that she has a poor relationship with the paternal grandparents. They have become involved in the proceedings and the mother perceives them as being supportive of their son but hostile to her. There is little or no viable relationship between the mother and the paternal grandparents.
The mother was questioned in relation to her assertion that the father had hidden a phone taped inside the lining of the children’s suitcase. The maternal grandfather had found the phone and formed a suspicion that the circumstances of the mothers arrest were unusual. The maternal grandfather located the iPad that C had brought, and checked its contents taking note of the text messages passing between the father and the children. The mother denied that she had spoken to the children about the phone and considers that they were aware that the phone had been hidden in the manner as described.
The father well knew that the mother did not want ongoing and unmonitored communication between the father and the children. She explained that it undermined her time with the children and the father was able to direct the children in terms of their conduct.
The focus of cross examination by the ICL was to better understand the circumstances in which the mother may have physically disciplined the children.
She agreed that historically she had smacked D but does not now remember the last time that it happened. She conceded that the children may hold a grudge because they remembered being smacked or told that they were by the father. Whilst the grudge may be real, the substance and basis for the grudge has long since dissipated.
The mother frankly conceded that C is at times difficult and oppositional. He does not take discipline well and his conduct appears to be exacerbated if he feels constrained by parental direction.
The mother was asked her view of the father. Again, whilst the response is unlikely to have great evidential value, it nonetheless provides a level of insight. The mother strongly believes that the father does not want her in the children’s lives and that his behaviour and conduct is easily explained against the backdrop of his intention.
In acknowledging that the children held a strong view of wanting to remain with the father, the mother was challenged as to the effect on the children of her proposal which would see the children transition into her care.
The mother recognised that the process would be difficult and the transition possibly traumatic for the children, but she opined that the children want to feel happy and safe and she had confidence that with the assistance of her family they will manage the transition into her primary care. She recognised that C is still clearly having issues with the separation, but remarked that after the amount of time that has now elapsed since separation, the children do not appear to be either getting the help that they need or benefiting from the counselling that they have received.
If necessary the mother would support the children resuming counselling with Mr S.
The mother’s evidence was measured, reasonable and demonstrated significant insight into the children’s presentation.
Much of the father’s concerns in respect to allegations of physical violence towards the children against the mother were not pressed in cross examination.
Mr Southey
The maternal grandfather relied upon his Trial Affidavit filed 15 November 2017. The maternal grandparents have played a significant role in the mother’s engagement and time with the children.
They assisted with the reunification therapy in that they were requested to facilitate the children travelling from the father to Ms G’s office.
Some detail is provided as to their easy transition of the children from their father to the therapeutic session.
Their evidence also refers to an occasion when the mother and the children travelled to W Town to spend time with the maternal grandparents over Easter. The police attended apparently as a result of a request for a welfare check on the children.
It was the maternal grandfather who discovered that a mobile phone had been taped to the bottom of one of the children’s clothing bags. He found a further mobile phone in the hollow interior of a toy police car. Access was gained to the phone by unscrewing the base of the toy.
The mother was arrested at the children’s sporting activity. The maternal grandfather explored an iPad that C had brought with him during the visit. A photo of the text messages that appeared on the iPad form annexure “JS3” to his affidavit. The transcript of the exchange between the father and C reads as follows:-
Father: Sorry typing mistake.
I’ll tell you about it when I see you.
[C]: I love you.
Father: I love you lots and lots and lots!!
[C]: You are the best.
[C]: Test
[C]: Test 2
[C]: [The mother] hurt me on my arm my chest and my elbo.
Father: How?
[C] : With her hand and nails.
Father: Are u ok?
[C]: I am ok now but it really hurt.
Father:Tell me what happened.
Please tell me everything you can remember.
[C]:Well I chucked mail onto the road she pushed me into my room.
I ran back out grabbed the mail of the road.
She grabbed the lanyard and punch me.
Father:Where are you?
[C]:At [the mother’s] house.
Father:Police are on their way!
Make sure you tell the police EVERYTHING!
Tell the truth!
Shout for help as soon as you can see them.
Run to the police and ask them to help you & [D].
[C]:Okay C: We are going to Ozkick.
Father:I’ll send the police there.
The evidence of the maternal grandmother corroborated the evidence of the maternal grandfather.
Their evidence was straightforward and coherent. I accept the accuracy of their observations that the children experienced difficulty in separating from the father and were reluctant to attend the therapy sessions with Ms G. I also accept that they have not witnessed the mother assault C.
Ms G
Ms G (“the therapist”) was requested by joint letter of instruction to assist the children with “reunification therapy” consequent upon the order made on 24 May 2016. The therapist scheduled 14 initial sessions between June and November 2016.
She prepared two reports dated 28 August and 5 December 2016.
The broad summary of the therapist as contained in her first report is that the children, whilst reluctant to see the mother, showed some interest in the relationship. The therapist found that both parties were engaged and acted in a respectful manner towards the children.
The therapist specifically commented on the manner in which the children refer to the mother by her first name and not as Mum or Mummy. That concern was dealt with in a subsequent order made 31 August 2016.
In the second report, the therapist commented on a session that had occurred on 1 September 2016 and in particular the father’s remarks that when the mother had “appropriately disciplined” C during a session, C had reported to the father that he “saw the red beast”. It was assumed by the therapist that the reference was pejorative and used to describe the mother’s anger or angry disposition.
The father conceded that the expression had come from a book on anger which had either been shared with C or had been the subject of comment by the father.
On 14 September 2016 the father advised the therapist that the police had advised him to postpone the reunification appointment on 15 September 2016. The cause for cancellation was allegedly that “my family were the victim of a very malicious attack on Sunday night” and that police had told the father that “… given the circumstances [the father] should postpone tomorrows (sic) reunification appointment.”
The suggestion is that the children were in some way involved, were cognisant of what had happened and the therapist understood that the father’s remarks were intended to implicate the mother as the perpetrator.
It is a reasonable assessment of the therapist’s report that as days passed and sessions were either difficult to arrange, were cancelled or did not occur, the proposed reunification process was not going to plan. The therapist became aware of information that the father had posted complaint on social media relating to the mother on 27 September 2016 in the following terms that the father was:-
“[T]he victim of Domestic Violence at the hands of my ex-wife for 5 years! My two beautiful children were also victims of violence by their mother!...my 2 beautiful innocent kids were physically assaulted on multiple occasions by their mother. They are still at risk because our court system is failing to protect them!
It also advised the recipients of the social media post that the father would paint two of his finger nails on each hand in the month of October to represent the children.
On 8 November 2016 the therapist was advised of an incident that occurred on the previous day when the maternal grandparents had dropped off letters from the mother to the children to the father’s letterbox. The father then followed the maternal grandparents and ultimately the police became involved and investigated whether there had been a breach of the intervention order by the mother.
The reunification sessions concluded after an incident on 9 November 2016. The evidence of the therapist is important and is set out in some detail in her second report. The issue assumes some significance and accordingly I set it out in full for completeness:-
On 9.11.16 [the mother] arrived for the session. When [the father] had not arrived at the scheduled time of 3pm, [the mother] commented that she had seen him parked across the street. I checked my phone and at 3.01pm [the father] had sent a text saying that he was running late. I looked out the front of the office and could see that he was sitting in the car with his tablet on the dashboard. At this time a Police car pulled up and two Police officers entered the office asking for [the mother]. This was alarming to other clients in the waiting room. The Police went in to the playroom and spoke to [the mother] about her being arrested for breaching the IVO. She was informed that [the father] had reported the incident again at a different Police station that afternoon. [The father] claimed that she had been in the car when it was in front of his house and had made threats to him. He reported he had video footage of [the mother] at his premises (subsequently described as not the case by the Police and it was noted that children had come outside when he was filming in the street). [The mother] was upset but remained fairly calm. I expressed my disbelief at them attending at a psychology practice. It was discussed that [the father] was out the front of the office building and queried whether the children were with him. A Police officer went to speak to him and returned to say that they were not. I then expressed concern about him apparently filming the incident. The Police returned to speak with him and asked him to leave, as there was no reason for him to be present, and asked him not to film. He did not leave and the officer described [the father] as “being a nuisance”. After some discussion [the mother] left with the Police by the back door and I observed [the father] to move his car presumably to be able to film this. I went over to his car and asked him what he was doing, to which he replied that he was “protecting my children”. I said I was aware he had been asked to leave by the Police and not to film. When I stood in front of his tablet, he then took out his mobile phone and apparently began filming on that. Once the Police had left he held the phone up towards my face and I commented that I did not give him permission to film me.
Notwithstanding the apparent breakdown of the reunification process, the observation of the therapist is that a meaningful relationship had been established and that its progress would be assisted by the father’s cooperation and support.
It was the impression of the therapist that the father was not in support of the reunification process and may well have conducted himself in a way that adversely affected the interests of the children by potentially raising with them “using visual material” of the mother’s arrest by the police.
The therapist considered that the children would benefit from spending more time with the mother in terms of solidifying the positive steps that had already been taken and that consideration should be given to the children spending longer periods of time in the mother’s care.
The father had lost confidence in the therapeutic process and considered that the therapist was displaying a clear bias towards the mother.
Paragraph 29 of the father’s trial affidavit alleges that the appointments for the counselling were made specifically between the therapist and the mother’s solicitors and that he was not consulted as to their suitability or advised of the dates. He specifically denies that any sessions that were cancelled were done so by him with any intention to interrupt the process. He contends at [42] of his trial affidavit that he was in his car on the day that the police arrested the mother and did so on instruction from the police. He asserts at [54] that the therapist accused him falsely of filming the mother’s arrest and he alleges that the therapist said words to the following effect to him:-
“I will make it my life’s mission to see the children taken from you… You will never see them again. I’ll never stop [Mr Wallace]… Wait and see. You are finished!”.
The therapist was barely challenged by the father’s counsel. Under cross examination, the therapist accepted that whilst the children had some initial reluctance to see the mother, there were signs that the children, but in particular C, could resume a relationship with the mother providing the father was supportive and not manipulative.
The therapist repeated the matters raised in her report that she had been informed by the police that the father had told them the mother would be at her rooms on 9 November 2016 enabling the mother to then be arrested for the alleged breach of the intervention order.
I consider the evidence of the therapist to be impressive and I place significant weight on her observations both as to the presentation and interaction of the children with each of the parties.
When questioned as to the evidence of the father, there was no concession made by the therapist that she had threatened the father as alleged. The therapist engaged in the therapeutic process with a high level of professionalism. Her evidence demonstrated an appropriate level of expertise and engendered confidence.
Mr P
Mr P and the mother commenced a relationship in 2015.
He has come into contact with the children when they spend time with the mother pursuant to Court orders.
He has three children from a previous relationship. The children have been introduced to his two younger children, one of whom spends regular time with Mr P in the home he shares with the mother.
Under cross examination, he agreed that there were a few occasions when he had picked up the children from school or had looked after them in the absence of the mother for a few hours.
Generally whilst he had observed some difficult behaviour by C, Mr P thought he was fairly well behaved most of the time.
He denied that he had ever yelled at the children and in particular that he had threatened to give the children a “backhander”. At no stage had he observed any physical assault or violent interaction between the mother and the children.
He had observed C say unpleasant things to the mother such as “you don’t love us” and “you want to take us away from Dad”.
The evidence of Mr P left a favourable impression.
The father
The father relied upon his Trial Affidavit filed 7 December 2017.
He was asked as to his knowledge of the two mobile phones that had allegedly been discovered by the maternal grandfather, apparently hidden or secreted in C’s bag and toy car respectively.
The father denied any knowledge as to how the mobile phones came to be with the children.
When the children returned from their visit they were however upset, but would not tell the father what had happened.
As at the date of his evidence the father conceded that he was withholding the children from the mother. He considered that the children were at significant risk of physical harm in their mother’s care.
He also denied that he attempted to record the mother’s arrest at Ms G’s office, stating at [42] that Ms G had “mistakenly believed that [his] GPS device that was fitted to the front of [his] vehicle was a video camera”. He also denied any knowledge of phoning the police or advising them that the mother would be at the rooms of the therapist.
The father’s denials were unconvincing. It does not seem credible that the police would have known of the mother’s whereabouts on the day of the arrest without advice from the father. Moreover, the police would have had no interest in the mother but for an allegation that she had apparently breached the intervention order.
It remains unclear as to why the father would deny his involvement in the events that led to the mother’s arrest.
The husband was challenged as to the veracity of the following statement that appears in [54] of his trial affidavit:-
…I say that I was gravely concerned by some statements that [Ms. G] made to me on that day. In particular, her final statement to me was to the effect of:-
“I will make it my life’s mission to see the children taken from you… You will never see them again. I’ll never stop [Mr Wallace]…wait and see. You are finished!”.
The father did not resile from the allegation and accordingly the evidence of the therapist is the subject of direct challenge.
The father’s evidence was unconvincing. I am not persuaded that the therapist made the threat that the father attributes to her.
The father’s evidence commenced on 13 December 2017. He admitted that he had spoken to the police about further allegations the day before his evidence. He was not able to state with any clarity why he had further involved the police with such proximity to the proceedings. His evidence was unconvincing.
The father agreed that he was aware of the “….com” site. Whilst admitting that some of the posts on his Facebook page and other social media sites were his, some of the posts were made by others.
The father was questioned as to an interest he had in demonology. He agreed that the former matrimonial home had been cleared of “evil spirits” and considered that people can be possessed by an evil spirit. The inference is that he considered the mother may have been possessed or was evil.
He also agreed that C’s reference to the “red beast” came from a standardised text on anger management.
The arrest of the mother at the rooms of the therapist on 9 November 2016 is a significant event.
On 7 November 2016 the mother asked her parents to assist her to deliver letters to the father’s home in anticipation of the next reunification session.
The maternal grandparents attended at the father’s home and placed a letter in the father’s letterbox.
The father admitted that he was taking photos of the maternal grandfather, rather than a video. The father used his mobile phone. He considered that he was very frightened by the attendance of the maternal grandfather and thought that it was necessary that there be some proof of his attendance.
Notwithstanding his fear, the father agreed that he then got into his motor vehicle and followed the maternal grandparents.
The father was questioned concerning his involvement with his former partner Ms H. She was not called to give evidence, but the father agreed that there had been an altercation between them resulting in an intervention order but no other proceedings. The father specifically denied that he had assaulted Ms H as alleged.
There were a number of serious allegations put to the father in relation to his relationship with Ms H.
It was asserted that the father had planted a toy doll belonging to D that had been wrapped up in cling wrap with a red liquid on the genital region of the doll. It was allegedly found by Ms H at her front gate in a shopping bag.
The father was aware of the allegation but denied any involvement.
He agreed that both she and he found themselves together at a nightclub on 28 May 2017, but denied that he was following or stalking her.
The father did concede that he had retained extensive personal information downloaded from Ms H’s mobile phone. Apparently to assist Ms H with the transfer of information from an old phone to a new mobile phone, he had downloaded the content from her old phone and retained it on his computer.
The father then conceded that he accessed some of that information to look at a number of text messages in an attempt to better understand whether his concerns that Ms H had been having a relationship with another person occurred.
He agreed that whilst he had downloaded the information with her consent, he did not have her permission to retain the information and certainly not after the altercation the subject of the police report.
The father contends that he and Ms H argued in the second story bedroom of their home, that she assaulted him but that he refused to let her leave the bedroom. She was able to escape by climbing out of the second story bedroom window.
It was put to the father that he then had called the police to have her detained and that this was the second occasion that such request had been made. Whilst the father agreed that he had contacted the police, his basis for doing so was a concern that Ms H may cause harm to herself.
Following the incident with Ms H he was admitted to hospital on 18 November 2016, transferred to a psychiatric hospital on 21 November 2016 and escaped from the hospital returning to Ms H’s home to collect his computer, hard drive and memory stick
The circumstances of the father being detained as set out in a report of Dr X being Annexure “SPW3” to the Affidavit of the paternal grandfather filed 12 December 2016.
The relevant paragraph of the report is as follows:-
[The father] has been under the care [of the] mental health team at … at [K Hospital] since 22/11/2016. He was brought in initially on 18/11/16 to the [J Hospital] ED, was then transferred to [Y Hospital] from [J Hospital] on 21/11/16. He absconded from [Y Hospital] (open ward) on 22/12/16 while under level 1 inpatient treatment order and went to his house. [Ms H], his partner and her son were in the house and forced his way into the property – the available history suggests that he assaulted her. She contacted SAPOL, he was reassessed and he was brought back to [K Hospital] (a closed ward). The available evidence suggests that he presents a significant risk to his partner. He no longer meets the requirements of the mental health act, and that he does not have a mental illness that affects his capacity to make informed decisions.
The psychiatrist considered that the father presented with an Adjustment Disorder and that he “has morbid jealousy regarding his partner Ms H and that he presents a significant ongoing threat to her”.
The report of Dr X was not presented to the single expert psychiatrist in the proceedings.
The father’s evidence is that 12 months before separation he went to the police and told them that the mother had been abusive towards the children. He agreed that he had not informed the mother of his actions, but conceded that he had taken photographs of the children in order to highlight their bruising. His recollection is that some 10 to 20 pictures were taken of the children which were ultimately provided to the police in order to substantiate the bruising evident on the children, but in particular C.
The father was challenged as to the extent to which the children were aware that photographs were being taken and their purpose.
After considerable cross examination and intervention by me, the father agreed that the children were aware of the purpose for the photographs being taken.
An example of the interaction with C concerning bruising and injuries sustained is the transcript of the video taken on 24 January 2015. The father considered that there may be more video and transcript.
The mother refers to her attendance at the children’s school assembly on 13 April 2017. It is her contention that parents were invited to attend and that D and her classmates would be running the assembly and performing songs.
The mother asserts that she saw the father and greeted him. The father then withheld the children from attending the school assembly and they remained in a classroom.
The mother was charged with a breach of the intervention order against the father and the children and arrested on 4 May 2017.
The father refers to the incident at [57] of his trial affidavit. Importantly, against the background of alleging that “she again breached the existing Intervention Order by coming within 50 metres of myself and the children” the following is said at paragraph 57(a):-
On 13 April 2017 the mother attended at a school assembly at the children’s school. Whilst at the school the mother threatened to kill my then partner, [Ms H], by making a hand gesture indicating that she was going to slit her throat. I reported this matter to the police. The police later also charged the mother with breaching the Intervention Order.
The father was asked to consider his statement made to the police at 1.29pm on 13 April 2017. The statement forms exhibit “6” in these proceedings. The statement does not contain any allegation that the mother behaved in a threatening fashion towards Ms H and asserted to the police that there was a Family Court Order in place and that a previous order had allowed the mother to attend the children’s school with the Court appointed psychologist’s permission, but that order was varied on 7 April 2017 with the observation that “all previous parenting orders are discharged”.
The father was asked to consider the detail of the order of 7 April 2017 and agreed that it did not give him “100 percent custody”, but rather, was an order that provided the children live with him and spend time with the mother.
Moreover, it is readily apparent that in discharging the previous parenting orders, the ability of the mother to attend at the children’s school was discharged in error. There was no suggestion that in making the orders of 7 April 2017 specific consideration was given to the merits or otherwise of the mother being able to attend at school based events.
The father’s evidence on this topic suggested that he was aware of the anomaly and had manipulated the circumstance to his own advantage, namely the further complaint to the police resulting in the mother’s subsequent arrest.
The father further conceded that the report to the police did not contain the allegation in paragraph 57(a) of a threat to kill. It is apparent if the father’s explanation is that he did not make the observation of the mother’s threat but rather, it was reported to him by Ms H, then paragraph 57(a) does not make the same observation.
In summary, the evidence supports a finding that the father took deliberate and calculated steps to make significant that which was unobjectionable in terms of the mother’s innocent attendance at the children’s school.
The mother refers to an attendance at the father’s home on 7 November 2016 in the maternal grandparent’s motor vehicle to deliver letters to the children. The letters were placed in the letterbox of the father’s home. The father was later observed to be following them in his vehicle and appeared to be videorecording or taking photographs of the mother and the maternal grandparents.
The mother’s evidence is that whilst she accompanied her parents on the way to the father’s home, she ensured that she got out of the vehicle at a distance of approximately 150 meters from his home.
In response, the father denies the mother’s version of events and says at paragraph 53 that he was alerted to a problem by Ms H calling out in a distressed manner. Ms H allegedly told the father that the mother and her parents were at the front of their home and had threatened her. The father then saw the paternal grandfather standing alongside his motor vehicle. He specifically asserts that the mother was sitting in the rear of the vehicle with the maternal grandmother sitting in the driver’s seat. The following appears at paragraph 53(e):-
[The mother] then opened the rear left door of the vehicle. She leaned out of the vehicle and made a hand gesture towards me like a pretend hand gun. She then said to me: “If you say anything [Mr Wallace], you are fucking dead”.
The father then observed the mother close the door and drive away. The father contends that he was “extremely frightened and [I] feared for the safety of my partner and the children who were inside the house”.
The father did not reveal that notwithstanding his stated fear he then got into his car and followed the vehicle. He alleges that he had CCTV footage of the mother’s attendance and that this had been provided to the police. Following a subpoena, a document had been produced which showed footage of a white car attending at the father’s home and the paternal grandfather putting something in the letterbox. The vision does not show the mother and certainly does not provide corroboration for the father’s version.
After following the motor vehicle, the father then attended at the police station and informed the police that the mother could be found at the rooms of the therapist at the upcoming reunification appointment.
I am left in little doubt that the mother’s evidence and that of the maternal grandfather is to be preferred over the evidence of the father. I specifically find that the mother was not in the car as alleged by the father and the purported threat by her to him has been concocted by the father.
The father further agreed that the children had spent an overnight weekend on 24 to 27 March 2017 with the mother. He gave an iPad to C which had included a Sim Card. He acknowledged that there had been occasions when C took the mother’s phone to send a message to him and that when the mother became aware that he had sent a message alleging that the mother had hit the children, she tried to call the father and reassure him that everything was okay.
The father acknowledged that he had contacted the police but did not ring the mother back in order to ascertain whether anything had occurred.
He caused the police to do a check on the children’s safety and on each occasion that he had made a request the response from the police was that the children were safe and not at risk.
The father’s adverse view of the mother is highlighted by his general belief that the mother would sing the theme song from a fast food restaurant with the sole purpose of antagonising C. The assertion is without substance, but the extent to which the father allegedly held a genuine belief that this was the mother’s intention highlights the extent to which he considers the mother should be discredited.
The text messages that appear as Annexure “TW11” to the mother’s trial affidavit are important, not because they set out the accuracy of what occurred but rather, as evidence that C was prepared to say and do what his father wanted in terms of allegation and assertion that the mother presented as a risk to the children.
The father was questioned as to the mother being arrested and detained for a period of seven days. This occurred after he had complained to the police that the mother had assaulted C by grabbing him on the arms. The mother accepted that she was angry with C for throwing the mail that he had collected from the letterbox onto the road and then running after it. The mother had sent him to his room. C asserted to the father in the text message that the mother had hurt his arm.
The father showed no remorse or concern for the mother’s imprisonment.
In March 2017 the father introduced the children to an organisation known as Z Group (“ZG”).
ZG is an organisation that allegedly have as their charter the protection of children against abuse. There are varying levels of activity in which the members of ZG engage depending upon the extent of the abuse and what may, in their opinion, be required in order to protect a child or children.
In March 2017 the father introduced the children to some members of the ZG group. Four members from the ZG group initially came to meet the children. On a later occasion 40 members came to meet the children.
The father says that he called members of ZG to come around and calm the children.
The father considered that ZG would likely provide good psychological support for the children. The leader was named “Mr AA”. He was the leader of the group and supported by “Mr BB”, “Mr CC” and “Mr DD”. The father agreed that they wore regalia with the letters ZG prominently displayed.
There are four levels of intervention starting with the group attending a child’s home and presenting the child with a ZG patch and a bear bearing the ZG logo. Level four intervention suggests that members of ZG will go to the home of a party and resort to force if that is necessary to protect the child or their members.
The father considered that the mother presented such a risk to the children and that he was in such fear of her that he needed the assistance of ZG.
In addition to the involvement of ZG and their apparent unfettered interaction with the children, the father has reinstated counselling for the children at their school and acknowledged that they have been interviewed by police on a number of occasions, interviewed at Child Protection Services (CPS) on at least one occasion and generally considered that the children needed some support in terms of the risk that their mother presented.
There is an unsatisfactory history of the children being taken to counselling.
Mr S, psychologist, commenced seeing C and D in October and November 2015. The visits stopped in January 2016 but resumed again on 4 April 2016.
Counselling has now stopped. The father says that both children have lost confidence in Mr S because he said that he was going to speak to the mother.
At the time that counselling commenced for the children D was four years of age. It is reported by the father that one of the reasons for counselling was that D felt left out of the process in that she was aware that C had seen someone at CPS but that she hadn’t. The implication was that she was desperate to speak to someone.
C went back to see Mr S in January 2016. It appears that C had expressed pleasure at seeing his mother and the inference is that the father was concerned that he was not able to influence the child’s negative view of the mother.
I am cognisant of the primary considerations and the additional considerations in respect of the matters as set out in s 60CC(2) and (3) of the Act. I specifically bring to account the matters contained in s 60CC(2A) and have regard to the allegations of the father that the mother presents as a risk to the children having perpetrated physical assault on them and the mother’s assertion that the father has promoted to the children that their mother is a person to be feared with the purpose of disrupting their relationship with her.
I propose to adopt the following approach:-
(1)Give consideration to the proposals put forward by each of the parties as they were identified and presented to the Court.
(2)Have regard to the objects expressed in s 60B(1) and underlying principles in 60B(2).
(3)Have regard to the provisions of s 60CC in order to determine in each case what is in the child’s best interests.
(4)Have regard to the primary considerations under s 60CC(2) namely, the benefits of the child having a meaningful relationship with both of the child’s parents and the need to protect the child from physical and psychological harm.
(5)Have regard to the additional considerations under s 60CC(3).
(6)That the evidence adduced by each of the parties in respect of a particular consideration pursuant to s 60CC(2) and (3) are to be considered and if more weight is to be given to one or more of the matters raised then this must be the subject of delineation and comment.
Section 61DA requires the Court to consider whether to apply the presumptions of equal shared parental responsibility by having regard to whether the matters as set out in s 61DA(2)-(4) (if relevant) would rebut the presumption.
Whilst the presumption may also be rebutted if there is evidence that will satisfy the Court that it is not in the best interests of the children for the parties to have equal shared parental responsibility, in this case such an outcome is not supported by either party or the ICL. It is not considered in the best interests of these children that there be an order for equal shared parental responsibility.
Whilst the presumption may well be rebutted, it may still be open to the Court to find on the evidence and by the application of s 60CC primary and additional considerations that equal shared parental responsibility is nonetheless the optimal outcome.
Whilst pre-empting a fulsome application of factors relevant to determining the best interests of the children, I do not consider that it is open to the Court to order equal shared parental responsibility in circumstances where neither party seeks such an order and the ICL considers that the evidence would not in any event warrant such an outcome.
Accordingly, whilst I do not need to consider the provisions of s 65DAA in these circumstances, there is however merit in considering the separate proposals of the parties and the orders that each of them would seek as to whether they are reasonably practicable and that it is proper to focus upon the practical reality of their proposals.
PARENTING CONSIDERATIONS
Meaningful relationship
The proposed orders of the mother seek that whilst the children live with her they spend significant and substantial time with the father. It is an appropriate summary of the mother’s proposal that whilst there remains a concern that the father presents a significant risk to the children by his apparent inability to support the children’s relationship with her, nonetheless she accepts that it is important for the children to maintain a relationship with him.
The ICL supports the thrust of the mother’s proposal, but is more cautious in terms of the extent of time that the children should spend with the father. The ICL views the father’s presentation with concern, reflected in proposed orders that the children live with the mother and after a period of three months during which the father would spend no time with the children, his time would be reintroduced but limited to four hours each alternate Sunday with limited time being spent on special occasions.
The father’s proposal does not provide for the children to spend any time with the mother.
The mother can be seen to be supportive of the children’s relationship with the father, whereas the father does not consider that the children would benefit from maintaining a substantial and meaningful relationship with their mother.
The mother seeks a more expansive order which, whilst at first consideration is likely to be seen as more respectful of the children’s needs than the father’s proposal, the ICL considers a more careful approach is required.
Section 60CC(2)(a) provides that it is one of the primary considerations that there is a benefit to a child of having a meaningful relationship with both of the child’s parents.
“Meaningful relationship” has often been defined as a significant relationship, one that is important, or a relationship of consequence.
The concept of a meaningful relationship is one that connotes quality rather than quantity.
The father’s proposal would not equate to the promotion or maintenance of a meaningful relationship between the children and their mother.
In Cotton & Cotton (1983) FLC 91-330 Nygh J considered that while it was generally desirable for a child to maintain a meaningful relationship with both parents, there must be a possibility first of the existence of a meaningful relationship. His Honour said at 78,252:-
…that desirability only operates where there is a chance of a meaningful relationship which is beneficial to the child. It is not, in other words, a question of contact for contact’s sake. If there is a situation where contact with a parent is on balance likely to cause more harm to the child than good, or even is not likely to confer any benefit, then little purpose is served by this Court making orders for such contact. That does not detract from the desirability for the child to have a meaningful relationship, but the possibility of a meaningful relationship must first exist.
In Sigley & Evor [2011] FamCAFC 22 the Court at [136] cited the observation of the Full Court in Champness & Hanson (2009) FLC 93-407 at 83,513:-
The first and very important observation we would make about this complaint is that the expression ‘meaningful relationship’ is a legal construct, not a psychological one. It is for the Court, not an expert, to determine what constitutes a ‘meaningful relationship’.
There is little support in the evidence of the father for the contention that the children would benefit from maintaining a relationship with the mother. In his interaction with the family consultant, the father maintained that upon closer investigation there would be revealed “a consistent pattern of concern” in respect of the mother’s aggression and mistreatment of the children.
The evidence confirms that in 2016 and 2017 the mother’s relationship with the children was fractured. By order, the mother engaged in a process of reunification therapy intended to restore her relationship with the children. That process was the subject of disruption by the father’s actions involving the police and culminating in the mother’s arrest.
Whilst that process has not resumed, the opinion of the therapist in the report dated 5 December 2016 was consistent with the children spending more time with the mother and if necessary the Court, “considering a longer period of [the mother] caring for the children.” Inherent in the remarks of the therapist is her view that it would be of benefit to the children to re-establish a relationship with the mother. The therapist could see no reason why the re-establishment of a relationship with the children would present as a risk. The opinion of Mr S was also corroborative of the benefits to the children of a relationship with their mother being restored. The involvement of Ms I was to similar effect. I do not find that it is a coincidence that all three health professionals were not supported and/or excluded from further involvement with the children by the actions of the father.
The mother presented as a parent with much to offer the children. She recognised that her relationship with C was troubled and at times she found his behaviour difficult to manage and confronting. She was prepared to concede that the father was better able to manage C’s behaviour with the caveat that much of the child’s defiance may have a foundation in his false and erroneous belief that he had been the subject of physical abuse by her. The relationship between the mother and D is less complicated given her age.
Whilst cautious, the family consultant considered that it would benefit the children to maintain a relationship with the mother, but his caution was born of a concern that further investigation needed to occur to ascertain whether the mother presented as a risk and if so, how the relationship could be fostered but the children protected.
In evidence, I considered that the mother presented with insight and a commendable lack of rancour towards the father even though she considered him to be the cause of her various involvement with the police, criminal charges, arrest and ultimately a short period of imprisonment.
As Murphy J said at [111] in Baglio & Baglio [2013] FamCA 105 there was “….a chance of a meaningful relationship…which is beneficial to” the child…” and that the corollary was also true and in that the absence of such a relationship had “the potential to cause [the child] harm in the long term”.
Unacceptable risk
An obvious focus is the mother’s criminal matters that have involved breaches of intervention orders in favour of the children and the father.
The evidence is that there are no outstanding criminal proceedings. The mother agreed that she pleaded guilty to the charge of aggravated assault of C on 23 January 2015 and a further charge of aggravated assault on the father involving the throwing of a mobile phone. No conviction was recorded for either.
There is no contention as to the basis upon which her plea of guilty was accepted by the Court in relation to both the children and the father. It is reasonable to find that in both circumstances the mother’s offending was at the lower end of the spectrum.
The balance of the criminal matters can be considered to be without substance. In particular, the withdrawal of the charge of contravening the intervention order arising from the paternal grandfather attending at the father’s home and dropping letters into the letterbox was not only withdrawn but the mother was also awarded costs.
The mother’s arrest on 12 May 2017 for the charge of the mother assaulting C was difficult to understand and reconcile. The charge was ultimately withdrawn and the high water mark of the evidence against the mother was that she grabbed C on the arm to prevent him running onto the road.
It is surprising that her conduct warranted a period of imprisonment of seven days. It is also notable that the father did not seek to intervene in respect of the mother’s arrest and attempt to ameliorate the adverse consequences to the children of their knowledge that their mother had been the subject of arrest and remand in custody.
The father’s evidence in respect of his involvement with the various criminal matters failed to impress. Moreover, I find that the father was deliberately manipulative in attempting to engineer both the children making complaint and allegation and then prompting or encouraging the police to take action against the mother. The evidence does not support a finding that the mother presents as a risk to the children, but rather, that the father has embarked upon a concerted and at times successful campaign to disrupt the mother’s relationship with the children and to promote the falsehood that she presents as a risk.
The evidence of the father’s involvement with the police arranging for their attendance at the rooms of the therapist during the reunification process is telling. I have found that the evidence of the therapist is to be believed and preferable to the version espoused by the father. I am satisfied that the father engineered the attendance of the police and then sought to film or photograph the mother’s arrest and the subsequent events.
On 7 November 2016 the mother and her parents travelled in their car to the father’s home to deliver letters to the children that had been the subject of a recommendation by the therapist. I accept the mother’s evidence that, at all material times, she was not in the car. I do not accept that at any time the father was in fear of either the mother (if for no other reason than she did not attend) or the maternal grandparents. I find that the father either undertook to video the mother and her parents in their car, or took photographs.
To the extent that the father reported the mother for breaching the intervention order by attending at his premises, I consider such a report to be maliciously motivated. The father was given an opportunity to present video evidence that clearly showed the mother was present at his home and not at a distance of some 150 meters from his home. The evidence did not support the father’s proposition.
Specifically, the evidence does not support the father’s allegation that the mother threatened him by a hand gesture of a handgun accompanied by the words “If you say anything [Mr Wallace], you are fucking dead”.
The paternal grandfather was also complicit in the father’s course of conduct.
On 31 March 2017 the mother received an email from the paternal grandfather advising that the children were not going to be made available for her time with them commencing on Saturday 1 April 2017. The email from the paternal grandfather was in the following terms:-
[Ms Wallace],
Due to miscommunication between lawyers a letter that was intended to reach your lawyer before today has not been sent.
The purpose of the proposed letter was to notify you that the children will not be available to you this week end while their disclosures relating to the events of last week end are being investigated. These matters have been reported to the police by [the father] and we are informed that further investigations are being conducted.
The injuries that we observed on both children have caused us concern and have led to this decision to withhold them this weekend.
There is no evidence to support the contention in the grandfather’s email that the children had sustained bruising or injuries as alleged.
The mother attended school assembly on 13 April 2017 and as a result the children were withheld from attending by the father and she was charged with a breach of the intervention order and arrested on 4 May 2017.
Whilst the mother attended at a school assembly, I do not consider that her actions were in any way adverse to the interests of the children. She did not engage in threatening behaviour or present any reason for the children to be fearful of her. I find that the reaction of the father, whilst at first consideration may have been an overreaction, was deliberate behaviour on the part of the father to reinforce in the children that they should be fearful of their mother and that she was not able to abide by the terms and conditions of the intervention order.
It is significant that the father conceded in the discharge of previous orders which enabled the mother to attend the children’s school for events to which parents are normally invited was inadvertently not carried forward into subsequent orders.
The mother agreed that she had been consulting a psychologist for a number of years since C’s birth. She was alive to the issues in relation to C and conceded candidly that her continued attendance upon a psychologist was for the management of her depression.
She continues to seek ongoing assistance from her general practitioner.
The mother has developed significant insight into her psychological presentation and the Court accepts that she has gained benefit from the various parenting programs that she has undertaken. The mother impressed as having engaged in these programs not to pay lip service to the litigation but rather, to gain benefit and insight that a fulsome involvement can produce.
Family violence cannot be ignored. In Soulos & Sorbo [2015] FamCA 196 the trial Judge gave specific consideration to Amador & Amador [2009] FamCAFC 196 being a case that illustrates how allegations of family violence and abuse, evidence and findings of fact dovetail to an outcome by way of judicial determination. In Amador at [95] the Full Court said:-
The best interests of a child the subject of an application for a parenting order must require that the Court determine relevant allegations of violence where that can be done. The consequence of placing a child under the supervision and/or care of a person who has been violent may be far reaching and very detrimental to the child’s welfare. The more serious the allegation of violence the more important it will be to the child to investigate and determine the allegation…
It is also apparent that independent verification of allegations of family violence are not required for the Court to be satisfied that it has occurred. As the Full Court said further at [79] in Amador:-
… Where domestic violence occurs in a family it frequently occurs in circumstances where there are no witnesses other than the parties to the marriage, and possibly their children. We cannot accept that a court could never make a positive finding that such violence occurred without there being corroborative evidence from a third party or a document or an admission…
The Court has had the advantage of hearing evidence from a number of sources. No effort was made to call the police who apparently were involved in investigating the various allegations. The mother candidly concedes the circumstances for the aggravated assault on C and on the father, with the resultant convictions. I accept the mother’s evidence as to the background to the convictions.
I reject the father’s contention that the sheer number of other criminal matters principally involving breaches of the intervention orders is in and of itself a factor to be taken into account in determining whether the mother presents as a risk and then whether that risk has reached an unacceptable level.
I do not consider that on the balance of probabilities there is evidence that would support the contention that the mother presents as a risk.
The consideration of whether the father presents as a risk is more problematic. It appears that he is implacably opposed to the children forming a relationship with their mother.
In Baglio & Baglio (supra) at [148] Murphy J said:-
…I am concerned by the mother’s actions in intentionally alienating the child from her father and removing from her life all references to him, other than references to violence. The child’s rights, enshrined in the Part VII Objects and Principles, pertain. I am also concerned by the mother’s repeated assertions that she will not encourage a relationship between the chid and her father, even if the Court were to find that the father does not pose an unacceptable risk of harm to the child. I consider such statements and conduct to be completely antithetical to the child’s best interests and demonstrative of an inability on the part of the mother to place the child’s needs, and in particular the benefit she may obtain from a relationship with her father, over her own issues with the father.
I have found that the father has been manipulative of the children’s relationship with their mother and has been prepared to promote a false belief that they have been the subject of physical assault by the mother and that she presents as an ongoing risk.
The father’s actions in encouraging the children to relate information concerning the mother’s allegedly aggressive conduct towards them is not in their best interests. The father further compounds the mischief created by him by encouraging C to be part of a secret plan to send real-time messages to the father. I accept the mother’s evidence and that of the maternal grandfather that the discovery of the mobile phones in the children’s possessions can be explained only by the father deliberately concealing them, rather than a mistake or accident.
A consideration of the father’s response to C’s text messages is consistent with an intention to create a hysterical reaction from the child.
The evidence does not support the allegations of C that he was the subject of assault by the mother. The evidence does not support the allegation by D that she was aware of the mother causing her to have a black eye at 18 months of age. Whilst it cannot be denied that the children believe that the allegations have substance and that they have been assaulted by their mother, the explanation is that the belief is erroneous, promoted by the father and with the support and complicity of the paternal grandparents.
The deliberate involvement by the father of ZG perpetrates the mindset of the children that their mother has been abusive towards them and that they need to be protected.
The presentation of C as being defiant and oppositional may well be as a result of the father’s conduct rather than any adverse behaviour of the mother. C’s presentation may well be a manifestation of the risk that the father has created.
The inability of the father to support the mother’s relationship with the children in circumstances where there is no suggestion from the single experts that there should be no relationship between them is of concern.
The very fact that reunification therapy was considered necessary provides an indicator of the real harm that can be experienced by the children and an indicator of the toxic environment created by the father.
The father presents as a risk to the children. The enquiry is whether the risk can be managed which is consistent with the mother’s application, or that the risk can be managed only with restrictive terms as promoted by the ICL.
The family consultant had the advantage of observing the father with the children. On one view of the evidence, the family assessment in terms of the observed interaction between the children and the mother could not have proceeded without the father’s assistance. The family consultant made the following observations:-
95.Both children report having a warm and loving relationship with [the father]. This is in stark contrast to their experiences with [the mother]. Both children have firm positions about not wanting further contact with her.
He further reported that:-
103.The children exhibited age-appropriate, spontaneous, animated interactions with [the father] with free-flowing conversation. There was no competition for [the father’s] time or affection and he appeared to be attuned to the children’s physical and emotional needs.
The family consultant noted spontaneous acts of affection and C was observed to write affectionately on a whiteboard in relation to his sister, his father, paternal grandparents and maternal grandmother.
The evidence of the father’s interaction with the children has been consistently positive.
The family consultant was not challenged by counsel for the ICL as to the consequence and effect on the children of the orders that the ICL now promotes.
Whilst the position of the ICL was reserved at the commencement of the proceedings pending the evidence of the parties being presented, there is an obvious lacuna in any evidence that would assist the Court in understanding the effect on the children, not just of the transition to the mother’s care but where that is combined with the children spending very limited time with the father after a period of three months of time being suspended.
Doing the best that I can and having proper regard to the time that the children have spent in the care of the father and the observations of the degree of comfort that the children exhibit when with him, it seems that the proposal of the mother which promotes greater involvement with the father than proposed by the ICL is preferable.
There is some merit in the proposal of the ICL that there be a period that the children are in the mother’s sole care. Three months is in my consideration too long a period for the children to be separated from the father. The children have suffered a great deal of disruption to their relationship with the mother, though some progress towards restoring the relationship was made during the reunification therapy with Ms G. I consider that the children and the mother can restore their relationship if given a reasonable opportunity. I therefore propose to suspend the father’s time with the children for a period of twenty eight (28) days to aid the transition of the children to the mother’s full time care.
Not without significant hesitation, I find that whilst the father presents as a significant risk to the children given his current mindset towards the mother, there is a risk to the children of not enabling them to spend reasonable qualitative time with the father.
The risks to the children are considerable, but there must be a balance and at all stages of the Court’s deliberation the best interests of the children must be paramount and represent the benchmark for determination.
The children’s wishes
There is no evidence that assists the Court in respect of the wishes or views of D, but there is evidence in relation to C. He has been consistent in his wish to live primarily with the father and to spend limited or no time with the mother. It may be that his position has now changed. There is no evidence that assists in demonstrating the current position of either child since the proceedings were adjourned.
The report of the therapist as reflected at paragraph 135 of the family consultant’s report is as follows:-
Reunification is considered successful with the children having opportunities to spend time with the mother and get to know her again. C’s behaviour was at times defiant and challenging but now seems to be more relaxed and enjoying his time. D enjoys the time and is asking for increased contact. Handovers are difficult in that the children perceive the mother as being angry.
The evidence does not support any other contention than C wanting to live primarily with his father. It may now be the case that the strength of that position has lessened, but the child’s attitude remains clear and unequivocal.
The difficulty that the evidence presents is that Cs’s apparently strong view is likely to have been coloured and influenced by the father’s overt conduct in engendering in him the mistaken belief that the mother does not love him, and is intent on causing him harm.
Ultimately, I give some weight to C’s wishes that any orders that are made should provide that C should spend reasonable time with his father. His wishes are a relevant factor when considering the more expansive proposal of the mother as opposed to the more restrictive proposal of the ICL.
The nature of the children’s relationship with each of the parents and other significant adults.
There is clearly a strong attachment between the children and their father. They feel comfortable in his care and presence and actively seek his attention.
The father and children live on the property of the paternal grandparents but in separate accommodation. The evidence supports a close relationship between the children and the paternal grandparents.
The strength and importance of the relationship that the children have with the father and his parents has been the subject of obvious and positive comment by the family consultant and other persons who come into contact with the children, both in terms of their education and health and wellbeing.
The relationship that the children have with the mother has been problematic, but the reunification process conducted by the therapist was successful in providing a basis for their relationship with the mother to be normalised. The orders currently in place provide for the children to spend significant and substantial time in their mother’s care.
The therapist and the family consultant did not consider that there would be any difficulty in D transitioning to spending more time or being in the primary care of the mother. The focus has been on C and his clear loyalty to his father.
The children appear to have a beneficial relationship with the maternal grandparents. They were involved in handover and were considered to create a safe and loving environment for the children.
When asked to consider who were the important people in his life, C included his maternal grandmother.
The overarching concern is that there are unhealthy components to the father’s relationship with the children in terms of his apparent inability to modify his conduct as it relates to his negative view of the mother and his continued conduct in seeking to reinforce the children’s false belief that their mother presents as a risk to them.
The likely effect of any change in the children’s circumstance.
It is a necessary consideration that in the absence of evidence that the father is able to support the children’s relationship with the mother, they can only be protected from this risk by living in the primary care of the parent who is most likely to support the children’s relationship with the other parent. There is no evidence to support the proposition that the father or the paternal grandparents have any genuine intention to support the children’s relationship with the mother.
The evidence supports confidence in the mother’s preparedness to support the children’s relationship with the father.
As considered by the family consultant, there may well be some anxiety and distress experienced by C in the outcome as proposed by the mother and the ICL. No evidence was led as to the impact on the children of the orders sought by the father assuming that they still represent his current position.
I consider that the mother’s presentation and her evidence, which acknowledged her psychological health issues and a commendable level of openness in relation to difficulties that she experienced from time to time with C and his behaviour, instils confidence that she has reflected on how the children’s needs will be best catered for.
The children will miss the paternal grandparents, but will have the advantage of spending more time with the maternal grandparents which will provide a beneficial balance between the two households.
There is no good reason why the separate families cannot each love and support the children to their separate and collective advantage.
The capacity of the parties to provide for the needs of the children including emotional and intellectual needs.
There is no issue raised as to the ability of the father or of the mother to provide for the physical and financial needs of the children. The mother is in fulltime employment and has re-partnered. The Court considered the presentation of the mother’s partner to be positive and supportive of the children.
The father does not work notwithstanding that he holds himself out as a healthcare provider and a person who is able to provide life coaching.
It is unknown as to whether the father is able to support the children without the assistance provided by his parents, but I have no doubt that they will continue to support him and by implication the children.
Family violence
Much has been said and discussed in respect of family violence. As best as I can ascertain, there are no outstanding intervention orders or any criminal proceedings arising out of an alleged breach of an intervention order pending.
The nature of the mother’s convictions for assault involving the children and their father were the subject of frank admission.
The ICL and the mother seek orders that the intervention order made 22 January 2016 against the mother and listing the children as protected persons be revoked.
In orders made 18 December 2017, the father agreed to an order by consent that the intervention order listing him as the protected person be revoked. He would not agree to a similar provision in relation to the children.
The evidence supports the finding that the father has used the intervention orders as a weapon rather than a shield.
It is not clear why the mother did not take steps to vary and/or discharge the intervention orders once she had formed the view that they were being used punitively towards her.
Where a court makes an order or grants an injunction which is inconsistent with an existing family violence order, the court must specify in the order or injunction that it is inconsistent with an existent family violence order and provide a detailed explanation in the order or injunction of how the contact that it provides for is to take place.
Section 68Q of the Act provides that to the extent of an inconsistency created by an order or an injunction with an existing family violence order, the family violence order is invalid.
The rationale is to ensure that orders do not expose children to family violence and to better promote the principles in s 60B.
The mother and the ICL seek the revocation of the remaining family violence order in favour of the children as protected persons because it is submitted that the evidence supports a finding that the mother does not present as a risk to the children. It is a further relevant consideration that the father has used the family violence order to disadvantage the mother in her application to have the children in her primary care with the consequence of the father’s conduct to place the children at risk. The very mischief that the family violence order was meant to remove, namely that the children be protected from risk, is used as a vehicle by the father to place them at risk.
The orders that are to be made are inconsistent with the circumstances of the intervention order namely, that the children need to be protected from the mother. They do not need that protection.
Accordingly, there is merit in the application of the mother and the ICL and I propose to order that pursuant to s 68P of the Act the intervention order made on 22 January 2016 against the mother and listing the children as protected persons be revoked.
PARENTAL RESPONSIBILITY
Each of the parties and the ICL urge the Court to make an order for sole parental responsibility and do not seek in the alternative either a sharing of parental responsibility or an order for equal shared parental responsibility.
It is reasonable that there be some requirement for the party without parental responsibility to receive information as to matters relating to the children’s health and education by way of an obligation to consult, but ultimately the recipient of sole parental responsibility should be able to make the final determination.
CHILDREN’S SCHOOL
It is an important consideration that the children feel comfortable and settled in their school, but that each of the parties are able to readily participate in the children’s school life. That requires consideration of the parties being able to attend at the children’s school for various functions both curricular and extra-curricular. In circumstances where the parties’ relationship with each other is poor and the mistrust between them patently obvious, the importance of the children’s school becomes pivotal and needs to be accessible to each of the parties and the maternal and paternal grandparents. Each of the grandparents are likely to play an important part in the wellbeing of the children.
There is merit in the application of the mother and supported by the ICL that the children be enrolled in the school as nominated by the mother to commence as soon as is practicable, but in any event not after the commencement of the third school term.
CONCLUSION
Each of the parties has much to offer the children which if properly directed could only enhance their welfare and development. The evidence obliges a finding that the best outcome for the children is if they maintain a relationship and involvement with each of the parties. I have confidence that the mother recognises the importance of the father in the children’s lives, I have little confidence that the father will or is capable of promoting the children’s relationship with the mother.
The consequences for children who progress in life with the erroneous belief that a parent has subjected them to abuse is dire. The impact on a child is as significant as it would be if the alleged abuse actually occurred.
I have not found that the mother presents as a risk to the children, but rather, she has displayed considerable insight into the needs of the children and balance in her recognition of the children’s need to maintain a relationship with their father.
The evidence promotes a finding that the father presents as a risk to the emotional and psychological wellbeing of the children evidenced by his preparedness to involve the children in his personal and deliberate attack on the mother.
The Court has little confidence that the father now accepts that the strategy of alienating the children from the mother is not protective of their best interests.
The children should remain in the primary care of the mother and spend significant time with the father. I have determined that the mother’s proposal which recognises the benefits to the children of maintaining a relationship with the father should be given greater weight than the more restrictive proposal of the ICL. There remains a risk that the ICL’s proposals may be more realistic than the idealistic approach of the mother, but it is intended that the children will gain from the more balanced and measured presentation of the mother and be able to put into better context the father’s more hysterical presentation.
The mother has sought that the children spend three nights in one week and one night in the intervening week with the father. I have not followed that approach.
There is difficulty in the parties coming together for handover and the orders provide that the father is not to attend unless the parties agree otherwise. The less involvement between the parties, extended family or other persons who may become involved in the handover arrangements the less likely it is that the children will be subject to conflict.
I have made provision for a shorter time than the period of time the mother proposes but that it be taken as a single block.
Orders will also be made to provide some certainty as to arrangements in respect of special occasions including the children’s birthdays, Easter and Christmas. The mother seeks that each of the parties be restrained from posting information on social media concerning the parties, their partners, the children or extended family. There should be no need for either party to have recourse to social media in respect of the proceedings.
Each of the parties should also be restrained from photographing, recording, videoing or having the other party placed under surveillance. The evidence does not support any finding that the mother has engaged in photographing or recording of the father, but given that it is her proposal there is no good reason to consider any alternative approach.
I make orders as appear at the commencement of these reasons.
I certify that the preceding four hundred and five (405) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 14 March 2018.
Associate:
Date: 14 March 2018
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