Walsh and McKinnon and Anor

[2007] FamCA 1062

FAMILY COURT OF AUSTRALIA

WALSH & MCKINNON AND ANOR (NO. 2) [2007] FamCA 1062

FAMILY LAW – CHILDREN – Father was long term resident parent who absconded with children shortly prior to hearing in Magellan list of case in which he alleges that children have been sexually abused in care of wife – Boys aged 7 and 8 years recovered after 1 year and reunited with mother – Children had previously spent only limited time with mother – Mother now has a very young child to alleged perpetrator of sexual abuse and they live as a family – Multiple risks – Risk that father will abscond again – Risk that children will be exposed to perpetrator of sexual abuse – Interim orders made whereby mother has sole responsibility for children – Children reside with paternal grandmother but see both parents each day

Family Law Act 1975 (Cth)
Family Law Amendment (Shared Parental responsibility) Act 2006 (Cth)

Goode & Goode [2006] FamCA 1346; (2006) FLC 93-286; (2007) 36 FamLR 422
Cowling & Cowling (1998) FLC 92-801
R & R: Children's Wishes (2000) FLC 93-000
H & W (1995) FLC 92-598

APPLICANT: Ms Walsh

RESPONDENT: Mr McKinnon

INTERVENOR: Mrs Honey

INDEPENDENT CHILDREN’S LAWYER: C.E. Family Lawyers

FILE NUMBER: MLF 4641 of 2001

DATE DELIVERED: 6 August 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 6 August 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr R. Allen

SOLICITOR FOR THE APPLICANT: Victoria Legal Aid

COUNSEL FOR THE RESPONDENT: Ms C.J. Jenkins

SOLICITOR FOR THE RESPONDENT: Susan Ruffin Solicitors

THE INTERVENOR: In Person

INDEPENDENT CHILDREN’S LAWYER COUNSEL: Mr N.M. Eidelson

INDEPENDENT CHILDREN’S LAWYER SOLICITOR: C.E. Family Lawyers

Orders

These Orders are made UPON THE UNDERTAKING of the paternal grandmother, Mrs Honey, given personally to the Court this day in the following terms:-

(a)That she will supervise all time which the father spends with the children … born … October 1998 and … born … June 2000;

(b)That she will not cause, permit of suffer the father to be in the presence of the children from 9pm to 7:30am on any day;

(c)That she will not cause, permit or suffer the father to go within 2 metres or enter upon or remain in the children’s school otherwise than under her direct supervision;

(d)That she will forthwith advise the mother by telephone as well as the local station of Victoria Police in the event that the father absconds with the children or either of them or she forms a suspicion that he may do so;

(e)That in the event that she feels unable to comply with this undertaking, she will forthwith contact the independent children’s lawyer, David Edney, who will have the matter relisted in liaison with my Associate for the purpose of having the paternal grandmother relieved from her responsibilities under the undertaking;

(f)That she will deliver the children to the mother, to be cared for by the mother, during any period when she feels that she is unable to comply with the terms of her responsibilities under this undertaking.

IT IS ORDERED:

1. That the paternal grandmother be given leave to intervene in these proceedings for the purpose of being bound by and effect to this order and she forthwith file a Notice of Address for Service. 

2. That until further order the mother have sole responsibility, to the exclusion of the father, for all major long term decisions concerning the children … born … October 1998 and … born … June 2000 including but not limited to day to day and long term issues relating to their education.

3. That until further order the mother forthwith arrange for the children to be enrolled as students at T Primary School and not do anything to remove the children as students of that school pending further order of the Court.

4. That until further order the children reside with the paternal grandmother at her home at M and the paternal grandmother be and is hereby responsible for taking the children to school on each school day and the paternal grandmother collect the children from the mother at 7pm.

5. That until further order the mother spend time and communicate with the children as follows:-

   (a)Subject to 5(b), during school term, from the conclusion of school, at school, each day until 8pm each evening;

   (b)Each alternate weekend, commencing 17 August 2007 from the conclusion of school on Friday until 4pm on Sunday;

   (c)During school term holidays, on weekdays from 1pm until 8pm;

   (d)During school term holidays each alternate weekend from 1 pm on Friday until 4pm on Sunday sequentially with the alternate weekend time taking pursuant to paragraph 5(b) hereof;

   (e)By telephone before school on each day when the paternal grandmother cause the children to place a telephone call to the mother’s residence, if she has a landline service, or mobile telephone number if she does not and the children be afforded an opportunity to speak with the mother privately and without distraction or disruption for a reasonable time;

   (f)As may otherwise be agreed from between herself and the paternal grandmother from time to time.

6. That for the purpose of the mother spending time with the children pursuant to the preceding paragraph the mother be responsible for collecting the children from school, if the time is expressed to commence at the conclusion of a school day, or from the paternal grandmother’s residence if the time is to commence or conclude on a non school day, the grandmother be responsible for the collection of the children from the mother’s residence at S at the conclusion of the time specified in paragraph 5(a), 5(b), 5(c) & 5(d) hereof.

7. That until further order the mother not cause, permit or suffer the children or either of them to be left unsupervised in the care of Mr D.

8. That the father be and is hereby restrained from being within 2 metres of the children’s school or entering upon or remaining in the children’s school otherwise than under the direct supervision of the paternal grandmother. 

9. That the paternal grandmother may attend events and functions specified for grandparents, fathers or special persons but otherwise the participation by her in the children’s reading and other class activities including sport be by agreement with the mother. 

10. That save for special events as contemplated in paragraph 9 hereof, the paternal grandmother not attend the school after the commencement of the school unless it is to deliver something to the children (or either of them) that they have forgotten and ought to have. 

11. That the independent children’s lawyer obtain the criminal history records from Victoria Police for the mother, father and Mr D unless same has already been done within the last six months and do so by subpoena. 

IT IS FURTHER ORDERED BY CONSENT:

1. That the independent children’s lawyer do all acts and things necessary to obtain a psychiatric assessment, by the same expert, of the father and the mother, such assessment to be done as soon as practicable and forthwith upon receipt a copy be sent to the family consultant responsible for preparation of the further family report.

2. That the parents do all acts and things necessary to submit results for supervised drug screening to detect the use of illicit drugs to the independent children’s lawyer on Thursday 9 August 2007 and each third Thursday thereafter with the parents to be responsible for the cost of such drug testing.

IT IS FURTHER ORDERED BY THE COURT:

1. That until further order each of the parents and the paternal grandmother be and is hereby restrained from causing, permitting or suffering the children or either of them to be assessed, treated or counselled by any psychologist, social scientist or like professional for the purpose of these proceedings or in relation to allegations of sexual abuse without the prior written consent of the independent children’s lawyer or order of the Court.

2. That neither party, their servants or agents shall remove the children from the Commonwealth of Australia and it is requested that all officers of the Australian Federal Police give effect to this order.

3. That the Australian Federal Police place the name of the said children on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the children’s names on the Watch List until further Order of the Court.

4. That pursuant to section 65LA of the Family Law Act 1975, the mother shall within 7 working days from the date of this order make contact with Relationships Australia, the parenting program provider as nominated by the court and attend before the provider for an initial assessment of suitability for a post-separation parenting program.  If assessed by the provider as being suitable to attend a program or part of a program and the provider nominates a particular program for the mother, the mother shall attend that program or that part of the program.

5. That pursuant to section 65LA of the Family Law Act 1975, the father shall within 7 working days from the date of this order make contact with Relationships Australia, the parenting program provider as nominated by the court and attend before the provider for an initial assessment of suitability for a post-separation parenting program.  If assessed by the provider as being suitable to attend a program or part of a program and the provider nominates a particular program for father, the father shall attend that program or that part of the program.

6. That until further order the parents and the paternal grandmother be and are hereby restrained from causing, permitting or suffering any discussion with or in the presence of the children or either of them which relates to allegations in these proceedings., the contents of documents or assessments. 

7. That until further order the father spend time with the children as may be agreed between himself and the paternal grandmother but not in breach of any of the responsibilities of the paternal grandmother pursuant to her undertaking given this day.

8. That the further hearing of this matter be adjourned to a pre trial conference before the Magellan Registrar on 24 October 2007 at 2:15pm. 

9. That the independent children’s lawyer be responsible for service of a sealed copy of this Order on the proper officer of the children’s school and for explaining to the proper officer the impact of paragraphs 2, 3, 4, 8, 9 and 10 hereof. 

10. That pursuant to section 65DA(2) and 62B of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the annexure hereto relating to parenting orders – obligations, consequences and who can help, the particulars of which are included in this Order.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Bennett delivered this day will for all publication and reporting purposes be referred to as Walsh & McKinnon and Anor.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 4641 of 2001

MS WALSH

Applicant

And

MR MCKINNON

Respondent

And

MRS HONEY

Intervenor

REASONS FOR JUDGMENT

(ex tempore)

1. This matter concerns the children, an elder son, born in November 1998, and a younger son, born in June 2000.  This is the first listing of the matter following the execution of a recovery order made after the father absconded with the children about a year ago.  The recovery order was executed on 24 July 2007 and the children are currently in the care of the mother pursuant to an order whereby the children are to spend time with her until further order.  

2. Prior to the father absconding with the children on 10 August 2006, this matter was on track for a hearing in the Magellan list of cases in early 2007.  The Magellan list is a highly resourced list of cases which is judge managed and fast tracked for the purpose of dealing with cases in which it is alleged that the children have been sexually abused or subjected to serious physical violence.

3. The allegations which the father had made then and which I am advised by his counsel, Ms Jenkins, he now persists with, are set out in a form 4 filed by the father on 20 May 2005.  It alleges that the children have been sexually abused whilst in the care of the mother and that the mother burnt one of the children. 

4. The matter is now back on track for hearing in November 2007, providing that each party can be psychiatrically assessed and reports of those assessments are to hand.  In this case, each party seeks a psychiatric assessment of the other and each parent consents to a psychiatric assessment of themselves.  If the psychiatric reports are not available prior to November 2007, I understand that there will be a space for the matter in December 2007.  

5. The issue which requires determination today is what parenting orders and arrangements should be put in place to operate between now and the final hearing at the end of the year. 

6. Dealing briefly with a history of the matter, the mother and father commenced cohabitation in late 1997 and separated in May 2001.  The children are the only two children of that relationship.  They are the father's only two children, as I understand it.  I do not understand that the father has repartnered.  The mother has repartnered with Mr D.  They have been together for about six years now and there is a six-week-old baby of that relationship.  

7. The parties separated in May 2000 when the older child was about three years old and the younger child was 10 or 11 months old.  The children remained with the mother for about three weeks and then, by arrangement with the paternal grandmother, it is alleged went to spend time with the father and were not returned to the mother.  In any event, it is common ground that the children have lived with the father and the father has been their primary caregiver since late May 2001. 

8. On 29 June 2001 the father filed an application seeking that the children live with him.  On 23 July 2001 orders were made by consent providing the children live weekabout with each parent.  However, after the children returned from a contact visit with bruising and intervention by the Department of Human Services ("DHS") further orders were made by consent on 18 September 2001 providing that the children reside with the father and the mother have unsupervised contact with them upon production of two consecutive clear drug screens. 

9. In January 2002 the children commenced unsupervised time with the mother, culminating in weekends overnight.  In June 2002 the older child made certain allegations in relation to the boyfriend of the maternal aunt, including that he had pulled his penis and inserted a finger into his bottom. 

10. On 9 August 2002 orders were made by consent providing for the children to live with the father and for the mother to be psychiatrically assessed.  She was assessed by Dr E, a psychiatrist, and a copy of that report has been tendered by the mother and is marked as exhibit “M2” and I will direct that it remain on the court file where family reports are stored. 

11. The report details the mother's very difficult childhood, including her having been sexually abused by a male relative at the age of 11, her sister having been subjected to similar abuse; extensive use of drugs, her having an anti‑authoritarian attitude and eventually how she ended up living in Salvation Army emergency accommodation in W.  This is where she met the father.  I do not understand that he was working there.  He was also receiving assistance from the Salvation Army. 

12. On 15 December 2003 the mother filed an application seeking unsupervised contact with the children each weekend.  On 27 January 2004 final orders were made by consent providing for the mother to have contact with the children from 10am Saturday to 10am Sunday for six months, thereafter each alternate weekend from Friday 6pm to Sunday 6pm and restraining the mother from bringing the children into contact with Mr M.  The mother was required to submit three random consecutive drug tests at four-monthly intervals over a 12-month period. 

13. The father alleges in his affidavit filed on 30 July 2007 that the younger child returned from contact in May 2004 with burnt hands and alleged that the mother had placed his hands on the heater.  He also alleges that in June 2004 the children disclosed they had been sexually abused at the mother's home and the mother was present.  The Department of Human Services and police were involved and contact between the children and the mother ceased. 

14. On 29 March 2005, the mother issued an application seeking to resume contact with the children as follows:  that she could have each alternate weekend with them from 4:30pm on Friday until Sunday at 4:30pm for half the school holidays and telephone contact.

15. On 20 May 2005, the father filed a Notice of Risk of Child Abuse.  He alleged:-

    a)physical and sexual assault of the older child by Mr M;

    b)in May 2004, the mother burnt the younger child’s hands;

    c)sexual and/or indecent assault of the older child by Mr D (the mother's partner) and Mr W (the former partner of the mother's sister) in the presence of the mother, who he says failed to take protective action to prevent same;

    d)sexual and/or indecent assault of the younger child by the mother's sister in the presence of the mother who failed to take protective action.

16. On 29 July 2005 the matter was formally assessed as a Magellan matter and the usual procedural orders were made.  On 22 July 2005, DHS had submitted what amounts to a Magellan report.  In that report, it is stated that between May 2001 and June 2005, there were 11 notifications about the children.  Four of those notifications were investigated and two were substantiated.  The first of the substantiated notifications are summarised as follows:

    11^th August 2004 – 13^th September 2004

    Concerns were reported in relation to [the children] who were believed to have disclosed to their father that whilst on access with their mother they were inappropriately touched by their mother’s boyfriend, Mr [D].  SOCAU members interviewed the children on the 30^th August and it was found that the alleged perpetrator was the children’s maternal aunt’s boyfriend, Mr [W].  During the VATE interview with SOCAU [the older child] disclosed that [Mr W] pulled his own pants down and rubbed his penis on his bottom over his underpants.  [The older child] stated that this happened near “[the] dog kennel and behind the tree”.  [The younger child] disclosed during his VATE interview that [the mother’s sister] (the maternal aunt) licks his stomach and back and his penis and around his bottom.  [The younger child] also disclosed that this mother burnt his fingers on the heater.  The concerns were substantiated and the file was closed after initial investigation as the father was assessed to be acting protectively.  At the time of closing the file the Police reported that they would only proceed with investigating the matter involving [the older child] and Mr [W], due to lack of evidence. 

17. The second substantiated notification related to the burning of the child's hands but it was determined by DHS that it had been an accidental injury.  DHS reported the following as to the likelihood of abuse or risk, the children's safety and finally, its recommendations:

    Likelihood

    There have been eleven previous notifications to child protection regarding [the children] over the period from May 2001 to June 2005.  Throughout previous child protection involvement concerns were expressed with regard to physical harm, sexual abuse, emotional harm, environmental neglect, parent’s substance misuse and failure to ensure safety. 

    Out of the four previous involvements two of these have been substantiated.  [The older child] disclosed during an interview with SOCAU that his maternal aunt’s boyfriend, [Mr W], pulled his pants down and rubbed his penis on [the older child’s] bottom over his pants.  [The younger child] was also interviewed and disclosed that his maternal aunt licked his body and penis.  [The younger child] further disclosed that his mother had burnt his fingers on the heater.  SOCAU made decision not to follow through [the younger child’s] disclosure due to lack of evidence however proceeded with investigation [of the older child’s] disclosure. 

    It is reported that the parents relationship was characterised by Domestic Violence.  Both parents have made counter allegations about the other stating that they were the perpetrator of domestic violence.  Both parents stated that there was domestic violence in their relationship however deny they were the perpetrator. 

    It is believed that the mother and father separated around May 2001 due to domestic violence and that the mother sought and obtained an IVO against the father.

    It is reported that whilst the mother and father were in a relationship that they misused substances on a regular basis.  The mother reports that she no longer smokes marijuana however was unwilling to submit a screen as she smokes occasionally (as recently as the weekend prior to be interviewed by child protection) and the screen would not be clear.

    [The father] at this time denies any substance misuse and states that he has not smoked marijuana for a period of four years.

    Since the parents separated in 2001 there has been ongoing issues with regard to the father denying access of the boys to the mother, [...].  At this time [the mother] has not seen or spoken with [the children] since June 2004.  [The father] reports that this is a result of [the mother] not attempting to make contact. 

    Since their separation the parents have had a highly tenuous relationship and there have been ongoing counter allegations of abuse of the children following access.  

    It is alleged that both parents have used inappropriate physical discipline.  Both [the mother] and [the father] deny the use of physical discipline stating that they use alternative methods. 

    [The mother] has been noted to suffer Depression in the past and also to be victim of sexual abuse herself as a child/young person.

    Ms [K], principal of [T] Primary School reports that [the older child] has presented as being anxious at school and that they have put t[h]is down to the pending Family Court hearing and the belief that [the older child] has to be in attendance. 

    Ms [T], psychologist reported that most of the allegations regarding sexual abuse came to her from the father and that [the older child] only spoke on one occasion of the “willy” game that he played with uncle ([Mr M]).  Ms [T] reported that the willy game involved taking out the willy and waving it around. 

    Ms [T] reports that when talking of their mother that the children would become wary.

    [The children] have at this time ceased counselling with Ms [T].

    Both [the children] were inconsistent in their responses when asked if they wanted to see their mother.

    Father continues to deny access at this time and has advised the writer he would not make the children do something that they didn’t want to. 

    Previous concerns have been identified in regard to the parents making counter allegations against each other and the impact that this has on the children.

    [The younger child] reported during this interview that his father had told him what to say to workers. 

    Safety

    Ms [K] reports that she has no concerns for [the older child] within the school environment and that [the father] is “trying really hard to do the right thing for his sons”. 

    [T] Kindergarten teacher reports no concerns for [the younger child] in the educational environment and that she believes that [the father] “is doing a good job”.  

    Senior Constable [L] from [W] SOCAU reports that neither [the younger child] nor [the older child] disclosed sexual abuse when interviewed.  At this time no charges have been laid by Criminal Investigation Unit, as there is no collaborative information of the alleged abuse occurring. 

    Family Court orders state that [the] mother is to have supervised access at [B] facility in [M].

    [The father] has been assessed by child protection to be an appropriate and protective parent to [the children]. 

    Safety Statement

    At this time it is assessed that sufficient safety is being demonstrated with regard to [the children] whilst they reside in their father’s primary care. 

    With regard to the mother and her contact with the children, it is believed that the children may have been influenced in their views of [the mother] and their wishes surrounding contact with her, by their father […].  When interviewed both children appeared to be initially unsure if they wanted contact with their mother, with [the younger child] clearly stating that his father told him what to say to workers.  Neither [the older child] or [the younger child] were able to clearly identify why they did not want to see their mother, other than [the older child] stating because she was ‘bad’.  Furthermore [the younger child’s] Kindergarten teacher has clearly reported that [the younger child] is missing the mother/adult figure within his life and is actively seeking this from his female teachers. 

    Although child protection acknowledge that [the father] has been assessed to be an appropriate and protective parent, it appears that at times he may have allowed his own feelings towards [the mother] to impair what is seen to be in the best interests of the children.  This has clearly been demonstrated through his unwillingness for access to proceed even in a supervised environment such as [B].

    With regard to the concerns surrounding the alleged sexual abuse of the children, it is assessed by child protection that should the mother ensure that the children are adequately supervised at all times during her contact that this would demonstrate sufficient safety for [the children].  This is based on the fact that there has been no collaborative information or evidence to suggest that [the mother] has participated or been witness to the alleged sexual abuse of her children. 

    Therefore the following recommendations have been made with respect to the care of [the children]. 

    Recommendations

    ·[the children] to continue to reside in the care of their father, […]. 

    ·That the mother, […] access with her children […] be reinstated. 

    ·That [the mother] has overnight weekend access with the children, […]. 

    ·That [the mother] ensures that the children, […] are fully supervised at all times during access visits. 

    ·That the father, […] complies with access conditions. 

    ·That the parents undergo mediation counselling in order to communicate appropriately in respect of their children. 

1. On 4 November 2005, which was after the DHS Magellan report was to hand and when the matter was on track for a hearing early in 2007, Brown J made certain orders by consent.  The orders provided for the mother to have contact with the children from 9:30am to 4pm Saturday for four Saturdays, thereafter for two alternate weekends from 9:30am on Saturday to 4pm on Sunday, and thereafter for each alternate weekend from 5 pm Friday to 4pm Sunday.  All of this contact (as it was then known) was conditional upon the mother supervising each of the children at all times and ensuring that her partner, Mr D, was not present between 7:30pm and 7:30am.  

2. The mother's contact was to commence on 3 December 2005 but it did not.  She was unable to provide clean test results for use of illicit drugs. 

   
   

   I understand the test results produced indicated use of cannabis by her which she alleges was as a result of passive intake which occurred when in the company of her friends who smoked a lot. 

3. The mother continued to spend time with the children on a supervised basis at B Contact Centre.  There are two affidavits filed in relation to the observations of the supervising contact workers of the mother and the children and of the father.  In all, they are favourable to the mother, including one report in relation to the visit on 23 April 2006, where it is entered "Any Further Details" the following:

   During the contact, while all three were sitting at the table, the writer heard [the younger child] say to [the mother], "I love you."  [The mother] responded by saying, "I love you too, baby." 

4. On 21 December 2005, the family consultant, Mr Y, interviewed the family.  Mr D also attended but it is not clear that he was ever interviewed.  Mr Y’s report is dated 18 January 2006.  He evaluates the matter as follows:-

   [31]. Both boys have, in the opinion of the writer, demonstrated that they have benefited greatly from the regular contact that has occurred over the past five months, in terms of the development of their relationship with their mother.

   [32]. Although [the older child] made some negative comments regarding

   
   

   [the mother] when interviewed, it is likely that these could be attributed to the fact that he appears to be more affected than his younger brother by the pressure he is under in seeking to please both parents.  He feels loyalty to his father and is no doubt aware of [the father’s] feelings regarding contact, having told DHS workers in the past, and the writer during this interview, that his father had told him what to say.  [The older child’s] actions during the observed contact session, together with [the younger child’s], constitute clear evidence, in the writer’s view, of a close and positive bond between both boys and [the mother]. 

   [33]. Although [the father] has stated that he would not have allowed unsupervised contact to proceed regardless of the existing orders remains untested, due to the fact that [the mother] has to date been unable to provide clean drug screens. Whether the level of cannabis present in her system is consistent with the explanation she has provided would be a determination best made by an expert in the field, if this was to become the point at issue for the Court. The writer’s view, however, is that regardless of whether [the mother] and/or Mr [D] or [the father] are users of marijuana at any level, the primary concern is that no adult is responsible for the care and well being of the children while under the influence of any substance, or allows the children to be exposed to drug use. At other times, while either party does not have that responsibility, the issue should not be a concern for the other party.

   [34]. The progression toward unsupervised and overnight contact visits remains a concern. [The father] feels that he is caught in a moral dilemma, torn between accepting his children’s bond with their mother and his belief that as a protective parent that he would be placing his children at risk of significant harm. The writer does not support [the father’s] view that the children would be at risk, based on the presentation of [the mother] and the children and the additional information referred to in this report, which has been provided by DHS, [the older child’s] primary school, the police Sexual Offences and Child Abuse Unit (SOCAU) and [B] Contact Service.

   [35]. It is important for contact to progress as that the closeness and strength of the children’s relationship with their mother is able to develop as they mature. Given that this is a highly emotive issue for [the father], requiring a level of trust in [the mother] that he does not posses, it may be beneficial for him to access personal therapeutic counselling while the transition to unsupervised contact occurs.

   [36]. The recommendation of this report is that the children continue to live with the father and commence regular unsupervised contact with the mother, with such contact to commence and progress toward alternate weekend contact in accordance with the schedule outlined in the orders made by consent in the Family Court and dated 2 November 2005.

5. On 27 February 2006 the father filed an application seeking that the orders of 4 November 2006 be varied so that the mother's contact would be supervised.  The matter then came before Mushin J on 7 July 2006.  At that time, the father apparently said that he was resistant to overnight time being spent with the children with the mother at her residence, notwithstanding that Mr D was excluded from the premises overnight by virtue of the orders made by Brown J.  By that stage, the matter had progressed or was about to progress to single overnight visits.  Mushin J altered the commencement date of Brown J's orders from 3 December 2005 to 8 July 2006. 

6. It is common ground that on 10 August 2006, when the mother was due to have overnight contact of two nights' duration, the father absconded with the children. 

7. On 31 August 2006, Dessau J made an ex parte recovery order supported by an order providing that the children could spend time with the mother on a continuing basis.  

8. As indicated, the children were recovered on 24 July 2007.  It was not a voluntary recovery.  It is apparent that there was extensive negotiations by the Australian Federal Police to locate the whereabouts of the children and apprehend them. 

9. So as matters currently stand, the father unilaterally prevented the boys from having any time with the mother from 10 August 2006 until 24 July 2007. 

10. The father’s affidavit material, filed in support of his current application which is for a reinstatement of the earlier orders, states that he and the boys travelled around Australia with a caravan and when they did not go to formal school, he taught them schoolwork for a few hours each day. 

11. The father seeks orders at variance with his form 2 application which was filed on 30 July 2007.  His proposal is that the children spend time with the mother every weekend for six weekends from 9am until 7pm on each Saturday and Sunday, and every alternate weekend commencing Saturday, 29 September from 9am to 7pm on Saturday and Sunday.  He says that the time can be as otherwise agreed.  He seeks that the children attend T Primary School which is a school situated nearly opposite the home of his mother.  It is implicit in the father's application that the children are not overnight with the mother at any time and that the mother supervises the children when they are in the presence of her partner, Mr D. 

12. The mother seeks different orders.  Her orders are in part set out in her response to an application in the case filed on 3 August 2007.  They are extensive.  However, in essence, she seeks that the children live with her and spend time with the father each alternate weekend, subject to that time being supervised by the paternal grandmother, Mrs Honey.  It was put to me, and

    
    

    I accept, that this was not the ideal resolution as far as the mother was concerned.  Had she been able to put it forward as a practicable proposal, she would have said that the father's time with the children should be conducted and take place at a contact centre.  However, she acknowledges, and quite responsibly in my view, that a contact centre cannot come on line for at least three months and that it is not feasible, nor is it in the best interests of the children, that there be a delay of that duration before they can see their father. 

13. The mother seeks a psychological assessment of the father.  At the hearing, that was refined and recast to be a psychiatric assessment of the father.  It seems to me that this is a matter in which the Court could be assisted by a psychiatric assessment of both parties to be conducted by the same psychiatrist.  Both parties agree to it.  I will make that order by consent.  Compliance by the mother will have to be subject to the mother being able to be funded by the Legal Aid Commission of Victoria to have that assessment of her completed. 

14. As I have already indicated, it is highly desirable the assessment be done as soon as possible so the hearing can proceed in November.  I would expect, as in all cases of this nature, that the independent children's lawyer ensure that reports of all experts be exchanged with all other experts.  It follows that the psychiatric assessment must be delivered to the family consultant as soon as possible.  Thereafter, there will be nothing to prevent the psychiatrist and the family consultant having discussions in this matter and it may even be that at a final hearing, whether before me or not, those two professionals, although experts in different fields, give their evidence concurrently. 

15. The independent children's lawyer proposes that orders be made broadly the same as the proposals sought by the mother.  Additionally, he seeks that the parties undergo supervised drug screening and that to me seems to be a very good idea. 

16. It is inherent in the proposals of the mother and the independent children's lawyer that the father is a significant flight risk, that is, that he will run off with the children again as he has done previously.  The father denies this in his material, such as it is, but does not lay to rest the concerns for which he says he fled in the first place. 

17. I also take into account that the father's version as deposed to in his affidavit sworn on 29 July 2007 appears to be at variance with bank statements and documents which were obtained by the mother on subpoena in the course of investigating the whereabouts of the children.  Some of those bank statements have been tendered in these proceedings and marked exhibit “M1”.  Counsel for the mother relies on those documents to demonstrate that the father spent different times at various places to that which he has deposed to in his affidavit sworn on 29 July 2007.  It is further put that, if he has lied about those matters, then his credit is impugned to the extent that I ought not to accept that he will not abscond with the children again and I ought not accept that statements which he says the children made to him which implicated Mr D as a perpetrator of sexual abuse were ever made at all.  In short, they put the father's credit in issue to a significant degree.  I understand that that is a view supported by the independent children's lawyer. 

18. The father, for his part, says that he still has the same concerns he had when he fled with the children in August 2006.  In particular, he points to certain deficiencies in the collation of evidence.  I will mention these now because it seems to me now that these are matters, with the assistance of the independent children's lawyer, against which professionals such as the psychiatrist and the family consultant can do some reality testing. 

19. The first matter contended by the father through his counsel was that when all three children were interviewed and a VATE interview was conducted at M, the children made certain disclosures that have not been set out in these proceedings.  There is a VATE tape in Court, having been produced on subpoena.  I will order that any such documents be available to the independent children's lawyer to copy and disseminate copies to each other party to the proceedings.  If I am talking about the wrong VATE tape, then I would urge the independent children's lawyer or the father to do everything they can to locate the correct VATE tape so that the father is not disadvantaged by making out his case before the psychiatrist or the family consultant in the abstract. 

20. It is common ground that in 2005, the children were counselled by Ms T in I.  She is a private counsellor and can apparently be located as a private practitioner.  The children apparently made statements to Ms T or at least Ms T told the father that the children made certain statements which indicated that they had been subjected to sexual abuse.  Moreover, Ms T told the father that these statements of the children were recorded on tapes.  I do not understand those tapes to be before the Court.  It seems appropriate that the tapes be obtained and all parties be able to listen to them; in particular the father have access to them on a secure basis so he can point to the precise statements which were made by the children which indicate sexual abuse which have hitherto not been in the court's records.  

21. I mention here that the children's interests are represented by David Edney, who is, within the meaning of the Act, an independent children's lawyer.  He was appointed as a child representative, as they were then known, on or about 8 March 2005. 

22. Pursuant to an order made on 8 March 2005, David Edney was appointed as the independent children’s lawyer for the children within the meaning of Division 10 of Part VII of the Act.  As such, his role is to form an independent view, based on available evidence, of what is in the children’s best interests and then act in these proceedings in what he believes to be the best interests of the children.[1]  He is not a legal representative retained by the children and he is not bound by any instructions from the children.[2]  The role of the independent children’s lawyer is to deal impartially with the parties, ensure that any views expressed by the children are fully put before the court, to analyse documentary, expert evidence and reports and to distil from that evidence significant matters for the purpose of properly drawing them to the court’s attention.  The independent children's lawyer is also under a specific duty to take steps to minimise for the child the trauma associated with proceedings[3] and to facilitate an agreed resolution of matters at issue in the proceedings to the extent that it is in the best interests of the child to do so.[4]

    [1] s 68LA(2) Family Law Act 1975 (Cth).

    [2] s 68LA(4) Family Law Act 1975 (Cth).

    [3] s 68LA(5)(d) Family Law Act 1975 (Cth).

    [4] s 68LA(5)(e) Family Law Act 1975 (Cth).

Legal Principles

1. The court must apply Part VII of the Family Law Act 1975, as amended in July 2006 by the Family Law Amendment (Shared Parental responsibility) Act 2006, following the legislative pathway as set out by the Full court in Goode & Goode[5], a decision of Bryant CJ, Finn and Boland JJ, delivered on

   
   

   15 December 2006. 

   [5] [2006] FamCA 1346; (2006) FLC 93-286; (2007) 36 FamLR 422

2. Before setting out the steps in an interim hearing, the Full Court in Goode’s case acknowledged some comments of a previous Full court in Cowling’s case (1998) FLC 92-801, as apposite. It acknowledged that the procedure for making interim parenting orders will be an abridged process where the scope of the enquiry is “significantly curtailed” compared to the ultimate hearing. It said (at paragraph 68):-

   “… where the court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible.  The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties’ respective proposals for the future.”

3. In observing that there are passages in Cowling that do not sit comfortably with the Act as amended, and must be re-considered in the light of changes to the Act, the Full Court then noted (at paragraph 72) that:-

   “… it can fairly be said there is a legislative intent evinced in favour of substantial involvement of both parents in their children’s lives, both as to parental responsibility and as to time spent with children, subject to the need to protect children from harm, from abuse and family violence and provided it is in their best interests and reasonably practical.” 

4. As to status quo, it continued:-

   “… where there is a status quo or well settled environment, instead of simply preserving it, unless there are protective or other significant best interests concerns for the child, the Court must follow the structure of the Act and consider accepting, where applicable, equal or significant involvement by both parents in the care arrangements for the child.” 

5. The Full Court said (at paragraph 73):-

   “That is not to say that stability derived from a well-settled arrangement may not ultimately be what the court finds to be in the child’s best interests, particularly where there is no ability to test controversial evidence, but that decision would be arrived at after a consideration of the matters contained in s 60CC, particularly s 60CC(3)(d) and s 60CC(3)(m) and, if appropriate, s 60CC(4) and s 60CC(4A).”

6. This is a case where there is no well-settled arrangement to which the court can have regard under Cowling's case.  It is clear that I must and I do consider the

   
   

   s 60CC matters that are relevant as to the children's best interests and, if possible, make findings about them, although it must be acknowledged that in interim proceedings such as these, there is little uncontested evidence to enable more than a limited consideration of those matters to take place.  Section 60CC(2) sets out the primary considerations and s 60CC(3) sets out the additional considerations.

Section 60CC(2)(a) the benefit to the child of having a meaningful relationship with both of the child’s parents.

1. Neither party alleges that the other ought not have a meaningful relationship with the children.  However, the father's recent actions in absconding with the children belie his position in that respect.

2. I take into account the need to protect both children from physical or psychological harm or from being exposed to abuse and neglect or family violence.  This is clearly a matter where I have to balance risks.  I have to balance the risk of the father further absconding.  I cannot say that I am comfortably satisfied that he will not do so.  However, I hope that he and his mother, that is, the paternal grandmother, have sufficient insight to recognise that compliance with the orders that I will make today will give him some track record to be used at the final hearing with which to satisfy the Court that he is compliant with orders. 

3. It is also equally important in my view to care for the psychological health of the children that they know that they are secure and will not be whisked away again.  This was a matter referred to by the family consultant, Ms J, who was present in Court and gave some limited comments when this matter was being heard on 3 August 2007.  It was her view, which I accept, that the children need to feel safe and secure and not as though they are at risk of being taken away from their mother again. 

4. For the combination of those reasons, I will not permit the father to have anything to do with the children's school, otherwise than under the direct supervision of his own mother.  Neither is to attend the school when the mother is entitled to collect the children at the end of the school day.  I will not permit the father to have unsupervised time with the children until further order.  That means that he will have to spend all his time with the children in the presence of his own mother. 

1. The paternal grandmother, I assume, has a reasonably busy life.  It may not be that the father can be accommodated in her home for many hours in a day.  The structure of the orders which I think best advances the best interests of the children would be for the children to see their father on a daily basis, to attend to familiar activities such as getting ready for school and perhaps being put to bed at night.  Then there should be time at the weekends when the father can spend time under the supervision of the paternal grandmother but he is not to be present between the times specified in the undertakings. 

2. Of course the next risk that I have to balance, and these are not in order of priority, is the risk of exposing the children to Mr D, who it is alleged by the father has sexually abused the older child.  Those allegations are untested, as are the fairly exculpatory reports of DHS and the family consultant.  Prior to the father absconding with the children, Mr D could be around the children under the supervision of the mother but had to leave their home overnight.  This was no hardship to Mr D as at November 2005 because he went to stay with his own parents in their large and close-by home.  However, things have changed since then.  Mr D and the mother now have their own child.  That is a baby boy who is six weeks old.  Mr D wants to stay overnight with his own child and the baby is being breastfed by the mother.  

3. I take into account pursuant to s 60CC(3)(a) the views expressed by the children and any factors such as the children's maturity and level of understanding that the court thinks are relevant to children's views.  Neither party has adduced evidence about the views of the children, neither does the independent children’s lawyer.  This is not a criticism of the independent children’s lawyer, it is reflective of the fact that the matter has been brought on very quickly after the execution of the recovery order.

Section 60CC(3)(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views.

1. In determining what is in the child’s best interests the Court must consider, amongst other factors, any views expressed by the child and any other factors that the Court thinks are relevant to the weight to be accorded to the child’s views.  Previously there was a similar provision,[6] which required the court to take into account the child’s ‘wishes’.  There is significant jurisprudence from this court in relation to children’s wishes which, as will become apparent,

   
   

   I consider relevant and helpful in relation to the Court’s assessment of, and weight to be accorded to, children’s views in the context of s 60CC(3)(a) of the Act. 

   [6] The repealed s 68F(2) Family Law Act 1975 (Cth).

2. The Full Court of the Family Court considered children’s wishes in

   
   R & R: Children's Wishes

   (2000) FLC 93-000. The Court, there comprising Nicholson CJ, Finn and Guest JJ, cited with approval the following statement of principle drawn from the joint judgment of Fogarty and Kay JJ in H & W (1995) FLC 92-598 at 81,944:

   The wishes of children are important and proper and realistic weight should be attached to any wishes expressed by children. 

3. There is a distinction between the concept of children’s wishes and children’s views.  ‘Views’ will capture a child’s perceptions, inclinations and feelings but not necessarily involve an aspiration or conclusion.  ‘Wishes’ are the result of perceptions, inclinations and feelings coalescing into a specific desire or ambition in the child’s mind.  The requirement to focus on the child’s views, as opposed to wishes, means that I may have regard to the child’s perceptions and inclinations without requiring the family consultant or independent children’s lawyer to make enquiries or elicit the child’s ultimate preference or wish.  

   
   

   I agree with the reference in the Revised Explanatory Memorandum[7] that consideration of the children’s views will:-

   allow for a decision to be made in consultation with the child without the child having to make a decision or express a ‘wish’ as to which parent he or she is to live or spend time with.[8] 

   Consideration of a child’s views does not exclude consideration of a child’s wishes. 

   [7] Revised Explanatory Memorandum, Family Law Amendment (Shared Parental Responsibility) Bill 2005 (Cth).

   [8] Ibid paragraph 56.

4. Once a child's views are ascertained, the next step in interpretation and assessment of these views requires a balancing of the views against the applicable primary and additional considerations which are relevant to the child's welfare.  This process was described by the Full Court in R v R , in relation to children’s wishes, as follows:-

   42. […] the court will attach varying degrees of weight to a child's stated wishes depending upon, amongst other factors, the strength and duration of their wishes, their basis, and the maturity of the child, including the degree of appreciation by the child of the factors involved in the issue before the court and their longer term implications.  Ultimately the overall welfare of the child is the determinant.  That is so because the legislation says so and also because long before specific legislation the practice of the Court in its parens patriae jurisdiction established that view. 

   54. […] There are many factors that may go to the weight that should be given to the wishes of children and these will vary from case to case and it is undesirable and indeed impossible to catalogue or confine them in the manner suggested.  Ultimately it is a process of intuitive synthesis on the part of the trial judge weighing up all the evidence relevant to the wishes of the children and applying it in a commonsense way as one of the factors in the overall assessment of the children's best interests.

5. I consider that in the discussion by the Full Court in R v R, reference to ‘wishes’ may be read interchangeably for ‘views’. 

6. The court may inform itself of views expressed by children by having regard to anything contained in a report given to the Court by a family consultant[9] or other expert or appropriately qualified person retained by the parties or through the independent children’s lawyer.[10]

   [9] ss 60CD(2)(a), 62G(2) and 62G(3A) Family Law Act 1975 (Cth), the last provision of which generally requires the person giving the report to ascertain the child’s views and include them in the report.

   [10] ss 60CD(2)(b), 62G(2) and 68LA(5)(b) Family Law Act 1975 (Cth), the last provision of which requires an independent children’s lawyer to ensure that the child’s views are put before the court.

7. As I have said, there is no evidence of the children's views, so I am unable to take them into account either way at this point.  I consider the nature of the relationship with the children with each of their parents and other persons, including of course the paternal grandmother and Mr D.  Each parent concedes that the children have a good relationship with the other parent. 

   
   

   I note that in relation to the mother, that is a concession which she has been prepared to make all along in these proceedings. 

8. I am satisfied by implication that the children have a comfortable relationship with the paternal grandmother.  The mother was proposing her as a supervisor for the father's time with the children and also in part because she has been prepared to put herself out very significantly in the course of these proceedings.  I have formed the preliminary view that these little boys are very lucky to have the paternal grandmother. 

9. I take into account pursuant to s 60CC(3)(c) the willingness of each of the children's parents to facilitate and encourage a close and continuing relationship between the child and the other parent.  Counsel for the independent children's lawyer was at pains to say that this is a matter where the father's case falls down significantly.  The father has between now and the final hearing to try to make things right but that it will be a fairly hard road to hoe.  There are some six months or so in which he can demonstrate that he is prepared to facilitate and promote a close and continuing relationship between the children and the mother and abide orders of the Court structured around him doing so. 

10. I accept the submission made on behalf of the independent children's lawyer and the mother that the mother's proposal of having the paternal grandmother supervise the father's time with the children is indicative of the mother having a fair and realistic attitude to the children keeping in touch with the father. 

11. I take into account pursuant to s 60CC(3)(d) the likely effect of any changes in the children's circumstances, including the likely effect on the children of any separation from either of their parents or from any other child with whom he or she has been living.  The children have always lived together and no one is suggesting that it should be otherwise.  In relation to separation from the parents, this is relevant in a prospective sense but also in a remedial sense.  The father has unilaterally taken the children away into his exclusive and nomadic care for the last 12 months.  They have been separated from the mother.  That cannot have been good for their relationship with the mother.  I suspect, when all of the evidence is collated, there may be some expert opinion to suggest that it was not very good for their relationship with their father either. 

12. Now, since 24 July 2007, the children have been in the exclusive care of the mother, pursuant to orders of the Court which were regularly obtained. 

13. I have given the matter careful consideration and conclude that it is in the best interests of these children to try and see each parent as frequently as possible.  That is, I will try as best I can to blend the families so that the children will see each parent daily if that parent can make themselves available to do so. 

    
    

    I interpret the comments of Ms J, the family consultant, who was assisting the Magellan list last week when this matter was argued, to endorse that course. 

14. I have regard to parental capacity and to the attitude to the children and the responsibilities of parenthood as they are set out as additional considerations. 

    
    

    I am of the view, however, that these are considerations best looked comprehensively, not piecemeal and that mean in the context of all of the evidence being before the Court.  Even so, it is difficult to overlook the impact in the immediate term the father having absconded with the children.  As far as the father is concerned, he was acting responsibly and to protect the children.  As far as the mother is concerned, the father put his own needs over those of the children.  Only time will tell who was right and whether it was a reasonable course to take or, if not adjudged reasonable, then at least on some genuine belief. 

15. There are no family violence orders to which I need have regard. 

16. I take into account whether it is preferable to make an order that would be least likely to lead to the institution of further proceedings.  Of course this is an interim determination and this is really in consideration given on a final hearing.  I cannot exclude there being a further interim hearing of this matter between now and the end of the year but I am not going to put in place a regime where one is compulsory or required. 

Parental responsibility

1. Parental responsibility in relation to children means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.[11]  In making parenting orders in relation to children, I am (subject to a few exceptions) required to adopt as a starting point that it is in the best interests of the children that the parents have equal shared parental responsibility.[12]  Equal shared parental responsibility relates to decision making about ‘major long term issues’, which is defined in s 4 of the Act as follows:-

   … issues about the care, welfare and development of the child of a long‑term nature and includes (but is not limited to) issues of that nature about:

   a) the child’s education (both current and future); and

   b) the child’s religious and cultural upbringing; and

   c) the child’s health; and

   d) the child’s name; and

   e) changes to the child’s living arrangements that make it significantly more difficult for the children to spend time with a parent.

   This presumption does not provide a starting point about the amount of time or communication that a child is to have with parents. 

   [11] s 61B Family Law Act 1975 (Cth).

   [12] s 61DA(1) Family Law Act 1975 (Cth).

2. Where two or more persons share parental responsibility, equally or in relation to any major long-term issue under a parenting order, they are required to make the decision jointly.[13]  The concept of joint responsibility carries with it the requirements to ‘consult the other parent in relation to the decision to be made about that issue’[14] and to ‘make a genuine effort to come to a joint decision about that issue’.[15]  These provisions mean that consultation and some discussion between the parties is required regarding major long-term decisions, for which parental responsibility shared. 

   [13] s 65DAC(2) Family Law Act 1975 (Cth).

   [14] s 65DAC(3)(a) Family Law Act 1975 (Cth).

   [15] s 65DAC(3)(b) Family Law Act 1975 (Cth).

3. The presumption that it is in the best interests of the children that the parents have equal shared parental responsibility does not apply or is rebutted in the following circumstances:-

   a)If the Court reasonably believes that a parent of a child, or a person who lives with a parent of a child, has engaged in family violence[16] or abuse of the child or another child who is a member of the parent’s family;[17]

   b)If, at an interim hearing, the court considers it is inappropriate for the presumption to apply[18] or;

   c)Where evidence is adduced, upon which the court is satisfied that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.[19] 

   [16] s 61DA(2)(b) Family Law Act 1975 (Cth).

   [17] s 61DA(2)(a) Family Law Act 1975 (Cth).

   [18] s 61DA(3) Family Law Act 1975 (Cth).

   [19] s 61DA(4) Family Law Act 1975 (Cth).

4. In Goode’s case the Full Court said that s 61DA(3) creates a discretion not to be exercised in a broad exclusionary manner, but only in circumstances where limited evidence may make the application of the presumption, or its rebuttal, difficult. 

5. In this case rebutted because interim and I am satisfied that the father has acted wholly contrary to the children’s rights to have a relationship with their mother. 

6. For the time being, it must be abundantly clear to all, vis-a-vis the mother and the father, that the mother is in charge of matters concerning the children.  That is a requirement of the children's ongoing safety and security as far as I am concerned. 

Consideration of equal time or substantial and significant time with both parents

1. By virtue of having previously determined that it is not in the children’s best interests for the parties to have equal shared parental responsibility, it is not necessary for me to consider whether I should make an order providing for the children to spend equal or substantial and significant time with each of the parents. 

2. As I have indicated, this is a case where I have to balance certain risks and put in place a regime which can, to the greatest degree possible, rectify the disjointed time these children have had over the last 12 months. 

3. All of the risks are fairly easy to accommodate, except the one relating to

   
   

   Mr D.  Do I exclude Mr D from his home for two nights a fortnight?  Having considered the matter over the weekend, having read the evidence to which each counsel referred and which I had not read when the matter commenced before me on Friday afternoon, I have concluded that I will not do so.  Whether Mr D chooses to stay in the home is a matter which he should carefully consider, as should the wife, as a matter for his own protection.  That is not necessarily a matter which he at any stage need communicate to anyone else, but it may be that he voluntarily, and in circumstances which he finds their household can manage, puts himself out of the home.  That is a matter for him and it is not going to be a matter of Court order. 

4. In coming to this conclusion, I take into account that there are always risks.  This case has more risks than most.   I also take into account that there are further proceedings which, hopefully, will be concluded by the end of this year and in the meantime, each party has the scrutiny of further assessments being made of them. 

5. I also take into consideration that, if Mr D did abuse the children as alleged, even if he does not do so again, the children may suffer psychologically by being in his presence.  The children may feel abandoned by the father and unprotected by the mother if left in the proximity of Mr D.  However, the orders which I make will result in the children being very active and moving between households on a daily basis.  If something is awry, I am confident that it will be picked up by the paternal grandmother or the school (with which they are familiar) or the mother.  The boys will not be separated from each other. 

6. I am satisfied that the risks in relation to Mr D are acceptable risks for the time being.

7. Having considered the matter and the thoughtful submissions of counsel for all parties and the independent children's lawyer, I conclude that the orders set out at the beginning of these reasons are in the best interests of the boys and I make them accordingly. 

I certify that the preceding eighty one (81) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett

Associate: 

Date:  12 September 2007