Warnett & Amerson
[2019] FamCA 499
•27 September 2019
FAMILY COURT OF AUSTRALIA
| WARNETT & AMERSON | [2019] FamCA 499 |
| FAMILY LAW – PARENTING – where the child has made disclosures of sexual abuse against a number of male relatives, including the father – where the father is presently spending supervised time with the child two hours per fortnight – where the mother seeks finding of unacceptable risk – where the mother proposes supervision continue until child is 18 years of age – where father proposes unsupervised time – where the Independent Children’s Lawyer proposes supervision until the child commences Year 8 in High School and child undertakes counselling with a therapist accredited by the Office of Children’s Guardian – where the child has very troubled presentation – where the mother seeks sole parental responsibility – where the father proposes equal shared parental responsibility – where the Independent Children’s Lawyer supports sole parental responsibility to the mother. FAMILY LAW – EVIDENCE – Onus of proof – balance of probabilities to establish unacceptable risk. |
| Family Law Act 1975 (Cth) ss 4, 4AB, 60B, 60CA, 60CC, 60CG, 61C, 61DA, 64B, 65D, 65Y, 65DAA, 65DAB, 65DAC, 69ZT, 69ZV, 97, 117 Evidence Act 1995 (Cth) s 140 |
| Aboriginal & Torres Strait Islander Affairs, Minister for & Norvill v Chapman (1995) 133 ALR 226 Champness & Hanson [2009] FamCAFC 96 Christmas v Nicol Bros Pty Ltd (1941) 41 SR (NSW) 317 |
| APPLICANT: | Mr Warnett |
| RESPONDENT: | Ms Amerson |
| INDEPENDENT CHILDREN’S LAWYER: | Lukes Law |
| FILE NUMBER: | WOC | 427 | of | 2017 |
| DATE DELIVERED: | 27 September 2019 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Harper J |
| HEARING DATE: | 18 - 22 March 2019 & 28 May 2019 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Murphy |
| SOLICITOR FOR THE APPLICANT: | In person |
| COUNSEL FOR THE RESPONDENT: | Mr Schonell SC |
| SOLICITOR FOR THE RESPONDENT: | Rossi Simicic Lawyers |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Scarlett |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Lukes Law |
Orders
That all prior parenting orders be discharged.
That the mother, Ms Amerson (“the mother”), have sole parental responsibility for the long term decisions in regard to the care, welfare and development of the child, Y born … 2011 (“Y”), with the mother to consult with the father, Mr Warnett (“the father”), in accordance with Order 3.
That before the mother exercises sole parental responsibility pursuant to Order 2, the mother shall:
(a)inform the father of her intention to do so by way of email, where possible at least 14 days prior to making any such decisions;
(b) invite the father to respond within 7 days;
(c) consider the father’s response and thereafter make a decision; and
(d) inform the father as soon as practicable thereafter of the decision made.
That Y live with the mother.
That subject to these Orders, Y spend time with the father as follows:
(a) One afternoon each month, as agreed in writing and if no agreement on the third Wednesday after school for a period of two (2) hours.
(b) On the first Sunday of the month for a period of up to four (4) hours.
(c)For four (4) hours on Christmas Eve at times to be agreed between the parties and failing agreement from 10:00am to 2:00pm.
(d) From the time that Y commences Year 8 in High School (in 2024), during the school term:
(i)Each alternate Wednesday from after school to 7:30pm.
(ii)Each alternate Sunday from 9:00am to 5:00pm for the first two terms.
(iii)During term 3, each alternate weekend from 9:00am Saturday to 5:00pm Sunday.
(iv)From term 4 and thereafter, each alternate weekend from Friday 3:00pm to Sunday 5:00pm.
(e) During the school holidays from 2024, being when Y is in Year 8 in High School:
(i)For two (2) periods of two (2) nights in the school holiday period at the end of term 3 on days agreed between the parties, or in the absence of agreement from 9:00am on Sunday to 5:00pm on Tuesday of the first week of the school holiday period, and 9:00am on Monday to 5:00pm on the Wednesday of the second week of the school holiday period.
(ii)For two (2) periods of five (5) nights in the school holiday period at the end of term 4, as agreed between the parties, or in the absence of agreement from 9:00am on Sunday to 5:00pm on Friday of the first week of the school holiday period and from 9:00am on Tuesday to 5:00pm on Sunday during the second week of January of the following year.
(iii)From 2025, during each of the mid-year school holiday periods for a period of one week, being the first week in odd numbered years and the second week in even numbered years.
(iv)From 2025, for one half of the Christmas School holiday period to be taken on a week about basis, unless otherwise agreed in writing.
(f)For a period of up to 8 hours between 9:00am to 5:00pm on Father’s Day, subject to Order 6 .
(g)For two (2) hours on Y’s birthday at times agreed or otherwise from 3:00pm to 5:00pm.
(h) Such other times as the parents agree in writing.
That until Y commences Year 8 in High School in 2024:
(a)the father’s time be supervised by a professional agency such as FF Agency, (“the professional agency”) or such other service or other person as agreed in writing between the parties and for the purposes of facilitating the supervision the following provisions will apply:
(i)That, if supervision is undertaken by a professional agency, a full report for each visit be generated by the professional agency and that this order be authority for the parents to obtain all contact reports directly from the professional agency or any other supervision agency engaged from time to time.
(ii)That the father be solely responsible for all costs of supervision and of the preparation of supervised contact reports.
(b)The father’s time on Father’s Day shall be subject to and in accordance with the requirements and availability of the professional agency.
For the avoidance of doubt, the parties may, by agreement in writing, vary the terms of Order 6 to substitute a non-professional supervisor.
That within twenty-eight (28) days the father enter into written undertakings to be filed in Court that:
(a) He will ensure that he is not present if Y is being undressed or bathing.
(b)He will not question Y about anything that occurs in the mother’s household.
(c)He will not discuss the parental relationship in the presence or hearing of Y or permit any other person to do so, except during therapy with Y in the presence of a counsellor.
(d)He will not discuss with Y any sexual allegations made by her, except if recommended by Y’s therapist and during any therapy with Y in the presence of a therapist.
(e)He will not discuss with Y her views on how much time she wishes to spend with him, except during therapy with Y, or as recommended by her therapist.
That once the father’s time is unsupervised, if changeover does not occur at the end or beginning of school then the father shall pick up and drop off the child at the nearest McDonald’s restaurant closest to the mother’s residence, or such other location agreed between the parties.
Within six (6) months of the date of these orders, the father take all necessary steps to undertake counselling with a therapist accredited by the NSW Office of Children’s Guardian, for a period of at least six (6) months or for longer if recommended by the therapist, with the counselling to help him deal with the allegations made against him and improve his ability to interact with Y and maintaining personal boundaries.
That both parties within fourteen (14) days, are to enrol in, then engage in and complete within six (6) months, a parenting after separation course such as Keeping Kids in Mind and then shall provide a copy of the certificate of completion to the other parent within twenty-eight (28) days of completion of the course.
That upon Y turning twelve (12) years of age both parties are to have completed a course similar to Bringing up Great Teens, conducted by DD Agency, and then shall provide a copy of the certificate of completion to the other parent within twenty-eight (28) days of completion of the course.
That the mother is to engage in counselling with therapist Ms B (or such other therapist accredited by the NSW Office of Children’s Guardian) to assist her in dealing with the issues raised by the allegations of sexual abuse made by Y, for at least six (6) months, or such time as recommended by the therapist.
That the mother shall do all such things so as to facilitate Y attending upon therapist Ms B (or such other therapist accredited by the NSW Office of Children’s Guardian) to deal with issues arising around her disclosures of sexual abuse and sexualised behaviour and protective behaviour work; for a period of twelve (12) months, or such further time as recommended by the therapist, and that the mother shall attend any such appointments requested by the therapist.
That in 2023 (when Y begins Year 7) the mother do all acts and things to ensure that by no later than term 3 Y is enrolled or engaged to participate in and complete an appropriate private personal protection course with therapist Ms B or a therapist accredited by the NSW Office of Children’s Guardian, for such period as recommended by the therapist, to prepare Y for the commencement of unsupervised time with the father and the mother shall:
(a)ensure that such protection course is concluded by the end of Y’s Year 7 schooling, and
(b) attend any such appointments requested by the therapist.
That the parties shall communicate with each other via email, and in the event of an emergency, via text message, and all such communication shall be in a polite and civil manner, and to facilitate this they are to immediately provide each other the details of their email addresses and phone numbers in the event of a change thereof.
That the mother be permitted to make application for a passport for the child Y born …2011 without the consent of the father.
That pursuant to s 65Y(2)(b) of the Family Law Act 1975 (Cth), the Mother be permitted to take the child, namely Y (born …2011) from Australia for the purpose of a family holiday provided she gives the father:
(a)no less than two (2) months’ written notice of such holiday, specifying the proposed duration, dates, and destination countries, and details of return flights; and
(b)No less than twenty-one (21) days prior to departure, a detailed itinerary of the proposed trip, including all flights, accommodation and locations to be visited.
The parties pay costs of the Independent Children’s Lawyer in the sum of $2,000 each.
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 Warnett & Amerson 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 SYDNEY |
FILE NUMBER: WOC427/2017
| Mr Warnett |
Applicant
And
| Ms Amerson |
Respondent
REASONS FOR JUDGMENT
This is a parenting matter between the applicant father, Mr Warnett (“the father”) and the respondent mother, Ms Amerson (“the mother”) in relation to the child of the relationship, Y born in 2011 and presently eight years of age.
Y presently lives with the mother and spends time with the father two hours each alternate Sunday, supervised by FF Agency. The parties agree on a final basis that the child should live with the mother. Agreement does not go much further than this. The parties are not able to agree upon how, or for how long, the child should spend time with her father. The mother seeks sole parental responsibility whereas the father asks for equal shared parental responsibility.
The father contends that the child should spend unsupervised time with him regularly, increasing in a graduated arrangement to each alternate weekend, from Friday to Tuesday. The mother resists the father spending anything other than limited supervised time with the child, until the child turns 18. The basis of the mother’s position lies in a number of disclosures made by the child, in summary, that she had suffered inappropriate sexual touching at the hands of the father, her paternal grandfather, her two older half-brothers, and the son of one of the mother’s friends. The factual matrix surrounding these disclosures will be discussed in detail later in these reasons. Investigations by authorities found no substantiation. Here, it can be said that the mother impugns those investigations. Also, according to the expert evidence, Y presents as a seriously troubled child. The mother argues that the Court should be sufficiently satisfied that the father could pose an unacceptable risk to the child so as to order a supervised regime. The mother also argues that supervision would protect the child from further investigations arising from fresh disclosures and also protect the father from any further allegations. As will become obvious, the resolution of the debate concerning unacceptable risk presents great difficulty.
Background
Some relevant background facts are helpful.
There was a dispute about the commencement and termination dates of the parties’ relationship. The father contends the parties commenced cohabitation several nights a week in April 2010. The mother contends the parties commenced cohabitation in December 2010. Y was born in2011.
The father contends final separation occurred on 15 May 2013. The mother contends final separation occurred 24 January 2012, following an altercation between the parties, which resulted in a Apprehended Domestic Violence Order (“ADVO”) being made for the protection of the mother for a period of two years.
It is unnecessary to resolve this dispute. Neither party submitted the commencement and termination dates had any particular significance in the circumstances of this case.
On the father’s date of separation, Y was two years old at the time of separation and on the mother’s date of separation, Y was almost one year old.
The father agrees that following the altercation in January 2012, he left the parties’ shared rental accommodation in BB Town to reside temporarily with his sister, but gives evidence he stayed irregularly with the mother thereafter. Y remained living with the mother. Later the father commenced living with the maternal grandparents, who resided at a property in BB Town, near to the mother’s residence.
The father contends he resumed cohabitation with the mother in around July 2012 until the parties separated in May 2013. The mother agrees that in late-2012, she and the father resumed cohabitation on a “platonic” basis but that the father moved out on a final basis in May 2013.
Y remained living primarily with the mother. After separation the father describes the care arrangements for Y as informal with him spending time with Y on average 2 – 2.5 days per week, including on weekends. The father also took Y to swimming lessons in LL Town.
The mother’s description gives more detail. She contends the father spent time with the child on an ad hoc basis, being anywhere from 30 minutes here and there immediately following separation. This increased to the father spending daytime periods with Y when the parties resumed cohabitation, to time on either Saturday or Sunday for a couple of hours after the father moved out on a final basis, to mid-week time on Wednesday, with the father taking Y to swimming, and one day during the weekend, arriving around 9:30am and leaving late afternoon, and thereafter, with the father caring for Y from time to time on occasions when the mother was unable to, for example, due to work.
The point is that, both parties gave evidence that Y spent substantial time with her father unsupervised after separation until March 2017.
In 2016, the child commenced primary schooling at The HH School, also known as “[HH]”.
The father gave evidence he last spent unsupervised time with the child on 29 March 2017, and contended that he spent no time with the child from 30 March 2017 to 26 November 2017, when supervised time under the current interim parenting orders commenced. As noted above, the father presently spends two hours with Y each fortnight, supervised by FF Agency.
The mother has two children from a previous relationship, Mr F presently 24 years of age, and Mr G presently 20 years of age.
The mother has re-partnered with Mr C. Mr C and the mother commenced cohabitation in May 2018.
The father gave no evidence that he has re-partnered. He lives with his father, the paternal grandfather, Mr A Warnett (“the paternal grandfather”), at the paternal grandfather’s home in Suburb KK, near Sydney.
Procedural History
Application to the Federal Circuit Court
The father filed his Initiating Application in the Federal Circuit Court of Australia on 20 April 2017. His Notice of Risk filed 20 April 2017 identified, amongst other things, that Y had made disclosures that Z, the son of Ms D, a friend and former business partner of the mother, had touched her on the underpants.
The mother filed her Response on 2 May 2017. Her Notice of Risk, also filed 2 May 2017, identified amongst other things that Y had made disclosures that the father and the paternal grandfather had touched her vagina on several occasions, and that the father had wanted her to “lick” and “bite” his penis.
The matter first came before his Honour Judge Altobelli in the City H Registry of the Federal Circuit Court of Australia on 3 May 2017. On 8 June 2017, given the unresolved allegations of sexual abuse, the matter was transferred to the Sydney Registry of the Family Court of Australia for consideration of allocation into the Magellan protocol.
In addition, parenting orders were made by consent that amongst other things restrained the father from contacting or communicating with Y and from attending or entering Y’s school or residence, and restrained both parents from taking Y to see a counsellor or psychologist, except as recommended or directed by Joint Investigation Response Teams (“JIRT”) or as agreed in writing with the Independent Children’s Lawyer (“ICL”).
Also on this occasion, recorded as a notation on a without admissions basis, the mother provided an undertaking to the Court that she would not allow Y to be in the company of Z, Mr F or Mr G “without any adult supervision”.
Procedural history following transfer to the Family Court
On 28 June 2017, the matter was allocated into the Magellan Protocol and orders were made for a Magellan Report to be prepared and furnished to the Court. The Magellan Report was released 15 September 2017.
On 17 November 2017, the matter came before Senior Registrar Campbell and orders were made by consent, in summary as follows:
a)Y live with the mother;
b)Y spend time with the father two hours each alternate Sunday, supervised by FF Agency (or other professional supervisions agency as agreed upon between the parties from time to time), with all parties and the ICL permitted to obtain contact reports directly from FF Agency, and the father responsible for the costs of supervision; and
c)To these orders, it was noted that prior to the first supervised visit, the ICL was to contact FF Agency to advise as to the risk issues and the need for the supervisor to ensure they could see Y at all times and hear all conversations between Y and the father.
Orders were also made for Dr J to be appointed as a single expert under Part 15.5 of the Family Law Rules (2004) (Cth) to prepare a Family Report for the Court.
On 5 June 2018, the Single Expert Report of Dr J was released.
On 30 August 2018, the matter came before Senior Registrar Campbell, and orders were made by consent which provided, amongst other things, for the orders made 8 June 2017 be varied to permit Y to attend upon Mr K, clinical psychologist and upon the HH School counsellor for counselling.
The Final Hearing was scheduled to take place over five days, from 18 to 22 March 2019. All parties appeared by counsel. As the evidence was not concluded as at the end of 22 March 2019, the matter was stood over part-heard to 28 May 2019.
Also on 22 March 2019, amongst other things, I directed the parties and the ICL to file and serve upon each other prior to 28 May 2019 written outlines of argument no longer than three pages in length and proposed Minutes of Final Order.
On 5 April 2019, the father filed his written submissions, being some four pages in length.
On 12 April 2019, the mother filed her written submissions.
On 13 April 2019, the father filed a further condensed set of written submissions, this time within the specified three page limit.
On 18 April 2019, the ICL filed written submissions.
The matter returned before me on 28 May 2019 for the last day of Final Hearing, where proposed Minutes of Order were tendered by the parties and ICL. Upon the conclusion of the trial, judgment was reserved.
At the conclusion of the hearing, counsel for the ICL made an oral application that the costs of the ICL be borne equally by the parties. Both parties opposed the ICL’s application for costs. In order to deal with this issue, leave was granted to the parties to submit to Chambers any time up to fourteen days thereafter a one page set of submissions regarding the ICL’s costs, with the issue of the ICL costs to be dealt with in this judgment. I deal with this issue at the end of these reasons.
Issues in dispute
The main outstanding issues between the parties are, as follows:
a)Whether the father’s time with the child should be supervised on the basis of a finding of unacceptable risk, either by reason of the risk of future harm in the care of the father or from the consequences of further allegations or disclosures by the child.
b)If supervision is ordered:
i)whether it should continue until the child turns 18, or at an earlier date;
ii)whether a final order for supervision is appropriate in any event; and
iii)how much supervised time should the child spend with her father.
c)If supervised time is not ordered, how much time should the child spend with the father.
Proposals
As set out in Exhibit “ICL6” the ICL’s proposal is as follows:
1. That all prior parenting orders be discharged.
2. That the mother, Ms Amerson have sole parental responsibility for the long term decisions in regard to the care, welfare and development of the child Y, born in 2011, with the Mother to consult with the Father, where possible at least 14 days prior to making any such decisions and is to take the father’s opinion into consideration and then advise the father of the decision made within 7 days of making such decision.
3. That Y live with the mother.
4. That subject to these Orders, Y spend time with the father as follows:
4.1 One afternoon each month, as agreed and if no agreement on the third Wednesday after school for a period of 2 hours.
4.2 On the first Sunday of the Month for a period of up to 4 hours.
4.3 For 4 hours on Christmas eve at times to be agreed between the parties and failing agreement from 10am to 2pm.
4.4 From the time that Y commences Year 8 in High School (in 2024), during the school term:
4.4.1 Each alternate Wednesday from after school to 7.30pm.
4.4.2 Each alternate Sunday from 9am to 5pm for the first two terms.
4.4.3 During term 3, each alternate weekend from 9am Saturday to 5pm Sunday.
4.4.3 From term 4 and thereafter, each alternate weekend from Friday 3pm to Sunday 5pm.
4.5 During the school holidays from 2024, being when Y is in Year 8 in High School:
4.5.1 For 2 periods of 2 nights in the school holiday period at the end of term 3 on days agreed, from 9am on the first day to 5pm on the 3rd day.
4.5.2 For 2 periods of 5 nights in the school holiday period at the end of term 4,
4.5.3 From 2025, during each of the mid year school holiday periods for a period of one week, being the first week in odd numbered years and the second week in even numbered years.
4.5.3 From 2025, for one half of the Christmas School holiday period to be taken on a week about basis, unless otherwise agreed.
4.6 From 9am to 5pm on Father’s Day.
4.7 For 2 hours on Y’s birthday at times agreed or otherwise from 3pm to 5pm
4.8 Such other times as the parents agree in writing.
5. That until Y commences year 8 in High School in 2024, the father’s time be supervised by an agency such as FF Agency Supervised Contact Service, or such other service or other person as agreed in writing between the parties.
6. That within 28 days the Father enter into written undertakings to be filed in Court that:
6.1 He will ensure that he is not in a room when Y is being undressed or bathing.
6.2 He will not question Y about anything that occurs in the Mother’s household.
6.3 He will not discuss the parental relationship in the presence or hearing of Y or permit any other person to do so, except during therapy with Y in the presence of a counsellor.
6.4 He will not discuss with Y the sexual allegations made by her, except if recommended by Y’s therapist and during any therapy with Y in the presence of a therapist.
6.5 He will not discuss with Y; her views on how much time she wishes to spend with him, except during therapy with Y, or as recommended by her therapist.
7. That once the father’s time is unsupervised that should changeover not occur at the end or beginning of school then the father shall pick up and drop off the child at the nearest McDonald’s restaurant closest to the Mother’s residence, or such other location agreed between the parties.
8. Within 6 months, he will undertake counselling with a therapist accredited by the Office of Children’s Guardian, for a period of at least 6 months or for longer if recommended by the therapist, with the counselling to help him deal with the allegations made against him and improve his ability to interact with Y and maintaining personal boundaries.
9. That both parties within 14 days, are to enrol in, then engage in and complete within 6 months, a parenting after separation course such as Keeping Kids in Mind and then shall provide a copy of the certificate of completion to the other parent within 28 days of completion of the course.
10. That upon Y turning 12 years of age both parties are to have completed a course similar to Bringing up Great Teens and then shall provide a copy of the certificate of completion to the other parent within 28 days of completion of the course.
11. That the Mother is to engage in counselling with therapist Ms B (or such other therapist accredited by the Office of Children’s Guardian) to assist her in dealing with the issues raised by the allegations of sexual abuse against Y, for at least 6 months, or such time as recommended by the therapist.
12. That the mother shall do all such things so as to facilitate Y attending upon therapist Ms B (or such other therapist accredited by the Office of Children’s Guardian) to deal with issues arising around her disclosures of sexual abuse and sexualised behaviour and protective behaviour work; for a period of 12 months, or such further time as recommended by the therapist, and that the mother shall attend any such appointments requested by the therapist.
13. That in 2023 (when Y begins Year 7) the mother shall do all such things so as to facilitate Y attending upon therapist Ms B (or such other therapist accredited by the Office of Children’s Guardian) to prepare Y for the commencement of unsupervised time with the father and protective behaviour work; for such period as recommended by the therapist, and that the mother shall attend any such appointments requested by the therapist.
14. That the parties shall communicate with each other via email and in the event of an emergency, via text message and all such communication shall be in a polite and civil manner, and to facilitate this they are to immediately provide each other the details of their email addresses and phone numbers in the event of a change thereof.
15. That the mother be permitted to make application for a passport for the child Y born in 2011 without the consent of the father.
16. That pursuant to Section 65Y(2)(b) of the Family Law Act, the Mother be permitted to take the child, namely Y (born in 2011) from Australia for the purpose of a family holiday provided she gives the father 2 months’ notice of such holiday.
NOTATION:
17. IT IS NOTED that the parties have liberty to make application to the Court in regard to the lifting or extension of supervision if required.
As set out in Exhibit “M”, the father’s proposed Minute of Order is as follows:
1. That the Father and the Mother shall have equal shared parental responsibility for the child, Y born in 2011.
2. That Y shall live with the mother.
3. That Y shall spend time with the father as follows:
i. For a period of four weeks every second Sunday from 9am until 3pm with changeover at McDonald’s Restaurant, Suburb MM.
ii. For a further period of four weeks every second Sunday from 9am until 5pm with changeover at McDonald’s Restaurant, Suburb MM.
iii. For a further period of four weeks every second weekend from 9am on Saturday until 3pm on Sunday with changeover to take place at MacDonald’s Restaurant, corner E Street and O Street, Suburb L.
iv. For a further period of four weeks every second weekend from the conclusion of school on Friday until 5pm Sunday.
v. For a further period of eight weeks every second weekend from the conclusion of school on Friday until before school Monday morning.
vi. Thereafter each alternate weekend from the conclusion of school on Friday until the following Tuesday before school.
4. For the purposes of the previous order unless otherwise stated the Father shall collect Y from school and return Y to school otherwise changeover will occur at MacDonald’s [sic] Restaurant, corner E Street and O Street, Suburb L.
5. Commencing Tuesday 10 December 2019 at the commencement of the Christmas School Holidays the father will collect Y at the close of school at approximately 12:00 midday. The father will return Y to the mother at 12:00 midday on Saturday 4 January 2020 at the exchange point of McDonalds in Suburb L. Within this period the Child will spend Christmas morning with the father, returning to the mother at 12:00 midday on 25 December when Y will spend 24 hours with the mother returning to the father at 12:00 midday on 26 December 2019.
6. Commencing December 2019, that the child Y shall spend the first half of all her school holidays with the father in odd years and the second half of all her school holidays with the Mother in even years except when the Mother is not available to care for Y when Y shall be cared for by the Father.
7. That the child Y shall spend time with the Father from 9.00 am to 5.00 pm on Father’s Day and that any provision for time with the Mother under this order that is inconsistent with this paragraph be suspended to facilitate time under this paragraph.
8. That the child Y spend time with the Mother from 9.00 am to 5.00 pm on Mother’s Day and that any provision for time with the Father under this order that is inconsistent with this paragraph be suspended.
9. That the child Y spend equal time with the Mother and the Father on:
(a) the child’s birthday;
(b) Any other special days, as agreed between the parties.
at times to be agreed between the Mother and the Father, and failing agreement, the child Y shall spend time with the Father from 1.00 pm until 7.00 pm on those birthdays and the Mother at all other times on those days.
10. That the child Y shall spend the first half of Christmas day with the Father in odd years changeover [sic] between parents will occur at 12:00 midday on Christmas day, in time to spend lunch with the Mother returning 24 hours later at 12:00 midday Boxing day. The changeover point will be a location half way between the residents [sic] of the Mother and Father on both occasions or at such other location agreed by both parents.
11. That the child Y shall spend the first half of Christmas day with the Mother in even years changeover [sic] between parents will occur at 12:00 midday on Christmas day, in time to spend lunch with the Father returning 24 hours later at 12:00 midday Boxing day. The changeover point will be a location half way between the residents [sic] of the Mother and Father on both occasions or at such a location agreed by both parents.
12. That the Father and Y communicate with each other by telephone, facetime or Skype on Wednesdays at 6pm when Y is with her Mother, with the Father to telephone, facetime or Skype Y on a phone number or skype ID provided by the Mother and at such other times as may be agreed between the parties. The mode of communication to be chosen by the father.
13. That the Mother and Y communicate with each other by telephone, facetime or Skype on Mondays at 6pm when Y is with the Father, with the Mother to telephone, facetime or Skype Y on a phone number or Skype ID provided by the Father, and at such other times as may be agreed between the parties. The mode of communication to be chosen by the mother.
14. That the parties advise the other of any change of telephone number, Skype ID or residential address within 24 hours of such change occurring.
15. That the parties encourage and not undermine Y’s relationship with the other party.
16. That each party is hereby authorised to obtain from Y’s school all notices, letters, school reports and invitations and to attend parent/ teacher or other activities to which parents are invited.
17. That each party is hereby authorised to attend upon and obtain information from any of Y’s treating medical practitioners.
18. That each party shall keep each other informed with respect to any appointments for any treatment for Y including but not limited to medical and or dental.
19. That the parents communicate via the use of the Talking Parents app with respect to matters pertaining to Y’s schooling, medical and any other matters of an important nature.
20. That Y remain a student at The HH School until the completion of her secondary education.
21. The child shall undertake a program as recommended by Dr J of an appropriate private personal protection course. The first time prior to the end of Y’s fifth year at Primary School and a second course to be completed prior to the end of Y’s first year at High School.
22. The parents are restrained from:
(a) speaking or permitting any other person to speak to or about the other parent or their family in a negative, offensive or unpleasant fashion in the presence or within hearing of the child.
(b) discussing any proceedings between the parents or the parental relationship in the presence or hearing of the child or permitting any other person to do so.
(c) Discussing with the child or within the hearing of the child any disclosure made by the child to any person, or any allegation made concerning the child, or allowing any other persons to discuss these things with or within the hearing of the child, except for any JIRT officer or Department of Family and Community Services caseworker, or other person with agreement of JIRT.
(d) Taking the child to see a counsellor or psychologist, including for allegations of sexual abuse except as agreed between the parties or as provide [sic] by court order.
23. That both the Father and Mother are restrained from taking Y on any travel to destinations referred to on the Australian Government travel advisory website; Department of Foreign Affairs and Trade [DFAT] specifically marked at “Level 3 – Reconsider your need to Travel” or “Level 2 – unacceptable risk”.
24. Subject to Order 23, that the mother and the father are permitted to take Y on international holidays during school holidays, as agreed, provided notification of travel arrangements are made no later than 6 weeks prior to the intended date of travel with full travel itinerary. When the father plans international holiday’s with Y, the mother will provide the passport for travel a minimum of 4 weeks prior to the confirmed date of travel. The father will also return the passport to the mother within 14 days after return to Australia.
As set out in Exhibit “13”, the mother’s proposed Minute of Order is as follows:
1. The mother have sole parental responsibility for the child of the relationship namely Y born in 2011 (“the child”).
2. That before the mother exercises sole parental responsibility pursuant to Order1, the mother shall:
a. inform the father of her intention to do so by way of email, where possible at least 14 days prior to making any such decisions, and
b. invite the father to respond within 7 days; and
c. consider the father’s response and thereafter make a decision, and;
d. inform the father as soon as practicable thereafter of the decision made.
3. That the parent’s share equally the costs of the child in relation to education and health expenses.
4. The child live with the mother.
5. The child spend time with the father as follows:-
a. From 3.30pm to 5.30pm each alternate Wednesday or at such other times as agreed between the parties from time to time
b. For 2 hours at a time agreed on each Father’s Day and failing agreement from noon until 2 pm,
c. For 2 hours on Christmas Day as agreed and failing agreement from 10am until noon.
d. For 2 hours on the day childs [sic] Birthday as agreed and failing agreement from 3.30pm to 5.30pm if a school day and 9.00am to 11.00am if a weekend.
6. That the time pursuant to order 5 be supervised by FF Agency or such other professional supervision agency agreed to between the parties in writing from time to time and for the purposes of facilitating the supervision the following provisions will apply:
a. That a full report for each visit be generated by FF Agency and that this order be authority for the parents to obtain all contact reports directly from FF Agency or any other supervision agency engaged from time to time.
b. That the father be solely responsible for all costs of supervision and of the preparation of supervised contact reports.
c. That FF Agency or any other supervision professional agency engaged from time to time are to be advised in writing prior to supervision commencing, the need to ensure that the supervisor can see Y at all times and hear all conversations between Y and the father.
7. That after the child’s 13th birthday, and provided the child and the father have undertaken the therapy identified in the ICL’s Minute of Order, the father be at liberty to make such further application as he desires in relation time [sic] with Y and it is noted the principals [sic] arising from the decision of “Rice & Aplund” would not prohibit the father from making such an application.
8. That in the year that Y is to complete year 7, the mother do all acts and things to ensure that by no later than term 3 Y is enrolled or engaged to participate or complete in [sic] an appropriate private personal protection course with a therapist accredited by the Office of Children’s Guardian and ensure that such protection course is concluded by the end of her year 7 schooling.
9. That Ms Amerson may apply for a passport for Y born in 2011 without first obtaining the consent of the child’s father Mr Warnett.
10. That the mother be at liberty to remove the child from the Commonwealth of Australia for the purpose of a holiday from time to time.
11. The registry manager provide a copy of these Orders to the appropriate person at the Department of Foreign Affairs and Trade.
12. That the father be restrained by injunction from:
a. Approaching the child at her school, remove or attempt to remove the child from her place of education or residence, or attempting to take possession of the child.
b. Communicating with the child outside of supervised contact, directly or indirectly whether that be through technology, another person or by any other means.
13. Prior to removing the child from the Commonwealth of Australia in accordance with these Orders, the mother shall give the father as much notice as practicable and provide the father with particulars of such travel including departure and return dates and the Countries the child will travel to whilst abroad.
So in summary, the ICL’s proposal would result in the child’s time with the father being supervised for a period of some three and half years, until she commences Year 8. The mother’s proposal would impose supervision until the child turns 18 subject to the father’s right to make a further application, after Y turns 13, with the mother’s agreement that the principles in Rice & Asplund (1979) FLC 90-725 should not apply. The father’s proposal provides for no supervision.
Evidence
The father relied on the following documents:
a)Case Outline dated 14 March 2019;
b)His Initiating Application filed 20 April 2017;
c)His Notice of Risk filed 20 April 2017;
d)His Affidavit sworn and filed 11 February 2019 (“father’s Trial Affidavit”);
e)Affidavit of Mr A Warnett sworn 19 November 2018 and filed on 21 November 2018; and
f)Affidavit of Ms M sworn and filed 21 November 2018.
As noted above, in accordance with directions made 22 March 2019, the father filed two lots of written submissions, on 5 April 2019 and 13 April 2019. Despite the submissions filed 5 April 2019 exceeding the three page limit set, counsel for the father sought to rely on this version.
The father and the paternal grandfather were cross-examined.
The mother relied on the following documents:
a)Her Response filed 2 May 2017;
b)Her Affidavit filed 11 February 2019 (“mother’s Trial Affidavit”);
c)Affidavit of Ms D filed 2 May 2017;
d)Affidavit of Ms N filed 31 May 2017;
e)Affidavit of Mr G filed 11 February 2019;
f)Affidavit of Mr C filed 11 February 2019;
g)Affidavit of Ms P filed 15 February 2019; and
h)Affidavit of Mr F filed 4 March 2019.
On 10 April 2019, the mother filed a further Affidavit of Ms P. With leave, this affidavit was read.
The mother, Ms D, Ms N, Mr G, Mr C, Mr F and Ms P were cross-examined.
I note Ms D gave evidence via telephone, following some difficulty with respect to her attendance in person at Court. Senior counsel for the mother made an application for Ms D to give evidence via telephone, based upon a letter dated 20 March 2019 from Dr Q, Suburb TT Medical Practice. This letter was subsequently marked Exhibit “A” in relation to this discrete application.
The following documents were received into evidence:
Exhibit Label
Document
Tendered by
Court 1
Family Report of Dr J dated 18 May 2018
A
Documents referred in Affidavit of Mr Warnett filed 11 February 2019 – Volume A
Father
B
Documents referred in Affidavit of Mr Warnett filed 11 February 2019 – Volume B
Father
C
FF Agency Contact Reports, dates of contact: 17 February 2019; 3 March 2019, 10 March 2019, 31 March 2019, 14 April 2019, 28 April 2019 and 26 May 2019
Father
D
Material produced under subpoena to FMP City H
Father
E
HH School Counselling Case Notes dated 20 March 2017 & 27 March 2017, counsellor: Ms VV
Father
F
Formal Complaint of Respondent Mother dated 2 May 2017 commencing “this is a formal complaint”
Father
G
Document entitled ‘Meeting – Y at City H JIRT’ dated 6 June 2017
Father
H
Family & Community Services File Note Record dated 30 May 2017 generated by Ms R on 31 May 2017
Father
I
Urine Microbiology for Y, requested and collected 2 June 2016
Father
J
Family & Community Services Contact Record generated 1 May 2017, page 4 of 5
Father
K
Family & Community Services File Note Record generated by Ms R dated 21 June 2017
Father
L
Father’s Tender Bundle
Father
M
Minute of Order sought by the Applicant Father
Father
N
Google Timeline 1 June 2016
Father
1
Email correspondence from father to Mr K, psychologist dated 12 November 2018
Mother
2
Statement of Mr Warnett dated 31 August 2017
Mother
3
Email from Rossi Simicic Lawyers to GG School dated 14 March 2019 enclosing letter from Rossi Simicic Lawyers to The Principal, GG School dated 14 March 2019; email from Lance Raskall, Principal, GG School to Rossi Simicic Lawyers dated 18 March 2019
Mother
4
Handwritten notes titled ‘Interview with Mr Warnett’, caseworker: Ms R
Mother
5
Document titled ‘Y; Teacher Meeting 3/3/17…Meeting Ms T 3/3/17’
Mother
6
HH School Counselling Case Note dated 3 April 2017, counsellor: Ms VV
Mother
7
Material produced under subpoena to BB Town Club
Mother
8
New South Wales Police Force, COPS records - Child Abuse Squad City H material
Father – first 6 pages of bundle
Mother – last paragraph, page 42 of bundle, ‘Report to CP Helpline on 06/03/2017 by Ms T of HH’
9
Paragraph 64, father’s Affidavit filed 30 October 2017
Mother
10
Wife’s Exhibit “…1”
Mother
11
Project Magellan Report dated 14 September 2017
Mother
12
Copies of father’s diary entries for period 16 January 2017 – 22 January 2017
Mother
13
Minute of Order sought by the Respondent Mother
Mother
ICL1
Email from FF Agency to Ms V dated 18 February 2019
ICL
ICL2
Highlighted portion of paragraph 7 of document reading “[Ms Amerson] then said…”
ICL
ICL3
Family & Community Services Contact Record generated 22 March 2019
ICL
ICL4
ICL’s Tender Bundle
ICL
ICL5
Handwritten document entitled ‘Amerson & Warnett: Costs of ICL’
ICL
ICL6
Minute of Order sought by ICL
ICL
Expert evidence
A Family Report was prepared in this matter by Dr J and as noted above, was marked Exhibit “Court 1”. The Family Report was based on the interviews and material as set out at pages 1-2 of Dr J report.
I will refer to the content of the report as necessary during the course of these reasons.
Dr J was cross-examined.
A Magellan Report was also prepared in this matter by the Department of Family & Community Services dated 14 September 2017, being Exhibit “11”. I have taken this report into account.
The Child
Y is currently 8 years of age.
As noted above, she presently attends HH.
The evidence shows Y is a troubled child. The mother gave evidence of behavioural issues at school and at home from an early age even before Y began attending school. The father did too. Both parents noted a propensity for Y to tell lies. There is evidence, discussed in more detail later in these reasons, from teachers and a counsellor at HH supporting these views. Dr J described Y as “seriously troubled”.
Dr J noted in his report (p. 18) that in the 12-18 months before school, Y exhibited a build-up of behavioural issues. She pulled a lizard apart, and there was several incidents of violence towards other children, including stabbing another child with a pair of scissors. Y also started wetting her pants during the day. Prior to this time, the mother described Y as a “dream child” to Dr J.
In his report at p. 41 Dr J expressed the following opinion:
A major concern with Y, perhaps even from prior to starting school, has been unhappy, attention seeking, aggressive behaviour towards other children, and lying and stealing. It seems clear that the allegation of her father having attended school on a Friday and having touched her was itself a lie, as the school seems confident that in fact she was in detention at that particular lunch time. The record also does not seem to allow her to have simply got the day wrong, as when she told (her mother), she referred to “today”.
Dr J continued at p. 42:
Finally, as I have indicated earlier, I formed the view that Y is quite an unhappy girl. Indeed when I saw her with each of her parents, she seemed significantly less happy with her mother than she was with her father, to the point of ignoring her. I am concerned that there may have been issues within her mother’s household, perhaps directly involving her mother as well, which have led to Y’s unhappiness and in turn to Y being rather bitter, antagonistic towards others, inclined to lie to cover up her behaviour or to achieve desired goals, and also to be quite attention seeking but in a somewhat more oblique way than one often sees.
In his oral evidence, Dr J spoke of Y having problems in most areas at a moderate level of intensity, but that she suffered “an incredibly broad range of problems. That’s the really unusual thing. The range of issues that – that she showed”.
The father’s evidence
The father presented as a perplexing witness. His answers had a tendency to be protracted. He often appeared to have an implausibly precise recollection. Frequently he failed to answer questions directly but treated the giving of answers as an opportunity to advocate for his case.
Senior counsel for the mother directly put in issue the father’s credit in a searching cross-examination. This exposed deficiencies in the father’s evidence. The following examples will suffice to illustrate this conclusion.
The first concerns the use made of diaries by the father in the period 2009 to 2017. It was undisputed the father had a general practice of maintaining annual diaries. It is evident from his Affidavits that he said he relied heavily on those diaries for the preparation of much of his evidence. Prior to the hearing the father had been asked to produce his diaries between 2009 and 2017. In answer, the husband produced diaries for 2009, 2010, 2013, 2014, 2015-2016, and 2017.
There was however no production of a diary for 2011 or 2012. The father was asked in cross-examination about this lacuna on the first day of the trial, 18 March 2019. In answering, he was quite clear that those diaries were not produced because they did not exist. He said that he did not believe he had purchased any diaries for those years. When it was put to him that for the 2011 calendar year he chose not to keep a diary he answered by saying that he sometimes kept “online notes” in 2011 and 2012. However no copies of any such notes were produced. He said he had deleted all such notes by the end of 2012.
Despite this, in his Trial Affidavit the father made reference to a number of events that took place in 2012 about which he said he also made a diary note at the time. For example, at paragraph 27 of his Trial Affidavit the father gave evidence of making a diary note of the conversation with the mother on 12 February 2012 not long after an ADVO had been made against him. At paragraph 28, the father gave evidence that from February to April 2012 he lived with his sister at Suburb L and stayed at the mother’s house on no less than 18 occasions. He said that he made a diary note of each time he had slept at these premises “simply to keep track of my movements”. As already observed the father swore his Trial Affidavit on 11 February 2019. The wording of the Affidavit clearly represents that, at the date of swearing, there existed or had existed a 2012 diary.
However in oral evidence on 18 March 2019, just over one month after his affidavit was sworn, the husband asserted that no such diary had ever existed. When paragraphs 27 and 28 of his Trial Affidavit were drawn to his attention later that day in cross-examination, he changed his evidence and agreed that he did have a paper diary for 2012 but had been unable to find it, saying “I made a mistake” in his evidence given earlier in the day. He was asked to search for the 2012 diary overnight. When the trial resumed on 19 March 2019, the father told the Court that he could not find the 2012 diary but he had last seen it “about a year ago”. It was put to him that in fact no diary had ever existed and that where in his Trial Affidavit he asserts that he made diary notes in 2012, this evidence was untruthful. He denied this.
The father’s evidence about the 2012 diary was inconsistent and unconvincing. Whilst the events of 2012 are not in themselves of the greatest relevance to the question of what orders should be made in 2019 in the best interests of the child, the journey from a 2012 diary supposedly existing on 11 February 2019, when he swore his Trial Affidavit, to such a diary never existing on the morning of 18 March 2019, back to such a diary existing but lost later in the afternoon of the same day, and unable to be found on 19 March 2019, was implausible, to say the least. It diminished the reliability of his evidence generally, and created an impression of opportunism in answering.
A second example is found in the purpose for keeping a diary at all. When asked why he kept a diary the father answered that it was for the purpose of recording appointments and events. He said sometimes he put a note in his diary of a significant event if it was a “standout” moment. He also said that the mother had a habit of “throwing things back” at him so he developed his own habit of keeping notes made contemporaneously of what she had said.
The stated connection between maintaining a diary and standout events has some significance. According to the father, among the standout events relevant to the proceedings were Y’s disclosures of alleged abuse. One such disclosure, made on 16 January 2017, concerned alleged inappropriate touching by Z (the child of the mother’s friend [Ms D], referred to above). At paragraph 126 of his Trial Affidavit the father says “I made a diary note of this revelation by [Y]. However, I made this diary note on the wrong date”. No copy of the said diary note, on any date, was annexed or exhibited to his affidavit or tendered at trial. In cross-examination, the father agreed there was no note in his 2017 diary. He sought to explain this absence by asserting that the disclosure was not “a stand out moment”, rather he “took it straight to” the mother, and he did not have the diary with him. These explanations are also far from convincing. It is hard to understand how a disclosure of sexually inappropriate touching by another child could plausibly go from being a stand out event supported by a diary entry in his Trial Affidavit to not being a stand out event at all. I will return to this disclosure later in these reasons.
A final example appears from Exhibit “4”. This was a copy of a handwritten record of an interview between the father and Ms R, a Family & Community Services (“FACS”) caseworker, which took place in July or August 2017 concerning the allegations and disclosures made by Y to the mother. In that interview, the father tried to insinuate that the mother had in past relationships made allegations about earlier partners, similar to those made about the father and Y. In cross-examination the father conceded he “misreported” what the mother had told him about her past relationships, and agreed that the allegations concerning Y were not of the same nature. I formed the view the father had been quite deliberate in his attempt to impugn the mother and focus attention onto her, without foundation.
The father’s variable evidence about a 2012 diary, including the assertions in his Trial Affidavit that his recollection of events was somehow corroborated by contemporaneous 2012 diary notes, together with the plain lack of any alleged 2017 diary note, or plausible explanation for that lack, concerning Y’s disclosure about Z, also indicated a propensity to enhance the veracity of his evidence by referring to supporting documentation which was not produced in evidence and was not proved to exist. This in turn highlights two salient features of the father’s evidence. One is that the father was inclined to improvise in the witness box, reconstruct events in great detail, according to his perception of the best interests of his case. The other is that he could be quite artful in attempting to clothe his evidence with the appearance of authenticity and reliability. The attempt to turn attention on to the mother by referring to her past relationships in his interview with Ms R also showed a capacity for guile. Overall, I formed the view that the father’s evidence was at times implausible and could not be safely relied upon.
While I formed the general impression that the father was an unreliable witness, I do not make a general adverse credit finding against him, since it is not necessary, and disposition of the case can be achieved otherwise: Carlson & Fluvium [2012] FamCA 32 at [165] - [169]; Adamson & Adamson (2015) 51 FamLR 626 at [90]. Nor does it follow that I generally reject all his evidence, although some of it is clearly suspect, since some of his evidence was not disputed, and other of his evidence was consistent with other evidence in the case. It is well-established that a trial judge can accept some parts of a witness’s evidence and reject others (Dublin, Wicklow & Wexford Railway Co v Slattery (1878) 3 App Cas 1155 at 1201; Christmas v Nicol Bros Pty Ltd (1941) 41 SR (NSW) 317 at 322). I have nonetheless approached the father’s evidence generally with considerable caution. This includes in relation to Y’s allegations of abuse. In the reasons which follow I will indicate where necessary the evidence of the husband on specific matters which I do not accept.
The mother’s evidence
Overall I found the mother to be more reliable and careful in her answers in cross-examination.
Having said that, her evidence was generally characterised by a conviction that the father was an unacceptable risk to the child, because he had inappropriately touched the child. I am satisfied this unshakeable attitude coloured her perception of everything the father did since March 2017.
Relevant Law
Legislative framework
Section 65D(1) of the Family Law Act 1975 (Cth) (“the Act”) provides that this Court may make such parenting orders as it thinks proper, subject to the provisions of s 61DA and s 65DAB of the Act.[1]
[1] There is no relevant parenting plan so s 65DAB of the Act does not apply.
The best interests of a child are the paramount consideration (s 60CA of the Act).
Section 61DA of the Act requires the Court, when making any parenting order in respect of a child, to apply a presumption that it is in the best interests of a child for a child’s parents to have equal shared parental responsibility for the child. The presumption requires careful consideration in every case, but especially here, where the parents, as already noted above, have widely divergent proposals about the allocation of parental responsibility, and the father seeks an order for equal shared parental responsibility. It is desirable to discuss the relevant authorities in some detail.
The application of the presumption has significant consequences. If no order allocating parental responsibility is made, by force of s.61C, each parent has parental responsibility, which means “all the duties, powers, responsibilities and authority which, by law, parents have in relation to children” (s.61B). Where the presumption applies, it conditions the Court’s power to make parenting orders: MRR v GR (2010) 240 CLR 461 at [20]; Cox & Pedrana (2013) FLC 93-537 at [16], [17]. It may be that if the presumption is applied, the court is required to make an order allocating equal shared parental responsibility: Damiani & Damiani (No. 2) [2009] FamCAFC 215 at [133], [134]. The Full Court decision in Goode & Goode [2006] FamCA 1346, and s 61C of the Act, together make clear that, unless displaced by Court order allocating parental responsibility, the parties’ parental responsibility may be exercised either jointly or severally.
Furthermore, if an order for equal shared parental responsibility is made or proposed to be made, s 65DAA will be engaged, obliging the Court to consider whether the child should spend equal time or substantial and significant time with each parent. Recently in Tibb & Sheean (2018) 58 FamLR 351; [2018] FamCAFC 142 at 366 [68], the Full Court (Murphy and Cronin JJ, Strickland J generally agreeing) has made clear that s 65DAA “does not demand the making of any parenting order for any type of time”, (original emphasis) and the section is driven by findings as to the best interests of the child. Nor is s 65DAA engaged by the presumption of equal shared parental responsibility, or an order allocating parental responsibility to be shared in some other manner which does not amount to, or is not specified as, “equal shared parental responsibility”; s 65DAA is only engaged by the making of, or the proposal to make, an order for equal shared parental responsibility: Tibb & Sheean (supra) at [69].
I have given careful consideration to the fact that it may seem counterintuitive (bearing in mind the role perception and intuition may play in assessing risk: CDJ v VAJ, (supra) at [128] to order supervision of Y’s time with the parent who presently has the better parenting skills, in this case the father. But my conclusions concerning risk, and the reasons for those conclusions, support orders for supervised time despite the father’s better parenting skills. Furthermore, after the therapeutic intervention included in the orders, the mother’s parenting is likely to improve.
I have taken account of the financial burden professional supervision will impose on the father. However, as already noted, he put forward no other alternative, such as a family member. As Dr J observed, in light of Y’s allegations against the paternal grandfather, he would not be a suitable supervisor. Since I have concluded that supervision should continue until Y reaches Year 8, there appears to be no alternative to professional supervision, unless the parties are able to agree upon a non-professional supervisor in the future. The proposed orders make provision for this possibility
I record here that no party made any proposal for a protective measure, in the face of a finding of unacceptable risk, other than supervision.
Other Orders
Orders for supervised time with the father do not deal with issues identified in the mother’s parenting. Dr J recommended that the mother be assisted by child psychologist support to assist her parenting. I am satisfied such an order should be made.
The father sought an order that Y remain at HH School. Although both parents seemed to accept in their oral evidence that Y may benefit from moving to a new school neither parent made any submissions about any particular new school. I do not propose to make any order concerning Y’s schooling, particularly since the mother will have sole parental responsibility.
Conclusion
This matter has been very difficult to decide. My ultimate conclusions have been reached, to some extent, contrary to the expert evidence of Dr J, and the many problems of plausibility in the allegations and disclosures made by Y. Nonetheless, having considered the matters referred to above, and having given such matters the weight referred to and for the reasons set out herein, I am is of the view that the Orders as set out at the commencement of these reasons are in the best interests of Y and accordingly, will so order.
Costs of the Independent Children’s Lawyer
At the conclusion of the Final Hearing, counsel for the ICL made an application for the payment of the ICL’s costs of the proceedings by the parties. The ICL tendered a handwritten memo titled “Costs of ICL”, marked Exhibit “ICL5”, setting out the costs sought. In summary, the ICL seeks total costs of $24,267.45, consisting of:
a)professional costs - $13,365 (including GST);
b)barristers’ costs - $7,546 (including GST);
c)disbursements - $997.50; and
d)miscellaneous, travel and agency expenses - $2,358.95.
As neither party is legally aided, the ICL submitted that the costs of the ICL shall be borne equally by the parties, in the sum of $12,133.72 each.
On 28 May 2019, I granted leave to the parties to submit to Chambers within 14 days a brief one page set of submissions regarding the ICL’s costs and noted that the matter of the ICL’s costs will be dealt with in this judgment.
On 11 June 2019, written submissions of the mother with respect to the costs of the ICL were received.
On 12 June 2019, written submissions of the father were received.
The mother and father oppose the ICL’s application.
The Law
In proceedings under the Family Law Act 1975 (Cth), by reason of s 117 of the Act, the Court applies the starting point that each party shall bear his or her own costs. If, however, the Court is of opinion that there are justifying circumstances, the Court may make such order as to costs and security for costs as the Court considers just: s 117(2).
The Act makes specific provision in s 117 for orders as to the costs of an ICL:
(3) To avoid doubt, in proceedings in which an independent children’s lawyer for a child has been appointed, the court may make an order under subsection (2) as to costs or security for costs, whether by way of interlocutory order or otherwise, to the effect that each party to the proceedings bears, in such proportion as the court considers just, the costs of the independent children’s lawyer in respect of the proceedings.
(4) However, in proceedings in which an independent children’s lawyer for a child has been appointed, if:
(a) a party to the proceedings has received legal aid in respect of the proceedings; or
(b) the court considers that a party to the proceedings would suffer financial hardship if the party had to bear a proportion of the costs of the independent children’s lawyer;
the court must not make an order under subsection (2) against that party in relation to the costs of the independent children’s lawyer.
…
(5) In considering what order (if any) should be made under subsection (2) in proceedings in which an independent children’s lawyer has been appointed, the court must disregard the fact that the independent children’s lawyer is funded under a legal aid scheme or service established under a Commonwealth, State or Territory law or approved by the Attorney‑General.
Discussion
Considering the restrictions of s 117(4) of the Act, given neither party is in receipt of Legal Aid, therefore, pursuant to s 117(4)(b), the Court must determine whether or not each party would suffer “financial hardship” if an order for them to bear a proportion of the costs of the ICL was made, as is sought by the ICL. If the Court comes to the conclusion that a party would suffer financial hardship if they had to bear a proportion of the costs of the ICL, no such order pursuant to s 117(2) should be made.
Both parties oppose the application of the ICL on the grounds that they do not have the capacity to meet a cost order as sought.
In addition to her written submissions, the mother relies upon an unfiled Financial Statement sworn 11 June 2019 and annexed to her written submissions. The document is incomplete in that Part N contains no information about her other expenses. She submits she is of modest means, receiving a weekly income of $3,465, and with expenses of $3,214 per week. As such, the mother has a weekly surplus of income to expenses of $251.
The father relies upon, in addition to his written submissions, his Financial Statement filed 30 January 2019. This too is incomplete, again lacking any information in Part N. He claims to be receiving estimated income of $1,500 per week, and having weekly expenses of $1,063. In his written submissions the father contends he presently pays $97 per week in child support. By way of the mother’s written submissions, she maintains the father continues to pay $17 per week by way of child support, and the father agreed with this figure in his Financial Statement. Whatever the true child support figure, he has weekly surplus of income to expenses of $357, or $437.
Although the evidence from the parties is not entirely satisfactory, I am satisfied an order for each to pay $12,133.72 towards the costs of the ICL would cause financial hardship. I take account of the evidence that the father has variable and limited sources of income.
On the other hand, the parties and the child benefited from the role played by the ICL in the proceedings. A contribution to the ICL’s costs is in the public interest.
I am satisfied a contribution of $2,000 by each parent would not cause either financial hardship.
Conclusion
I will order each party pay $2,000 towards the costs of the ICL.
I certify that the preceding two hundred and eighty-nine (289) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Harper delivered on 27 September 2019.
Associate:
Date: 27 September 2019
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