Webb & Guthrie
[2016] FCCA 2285
•16 December 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| WEBB & GUTHRIE | [2016] FCCA 2285 |
| Catchwords: FAMILY LAW – Parenting – where mother makes allegations of sexual abuse – where no foundation for those allegations – where mother cannot support child’s relationship with the father. |
| Legislation: Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA, 69ZT(3), 69ZV |
| Cases cited: MRR v GR [2010] HCA 4 Re W (Sex Abuse: Standard of Proof) [2004] FamCA 768 Webb & Guthrie [2015] FCCA 1353 WK v SR (1997) FLC 92-787 |
| Applicant: | MR WEBB |
| Respondent: | MS GUTHRIE |
| File Number: | WOC 341 of 2013 |
| Judgment of: | Judge Altobelli |
| Hearing dates: | 11-13 April and 4 May 2016 |
| Date of Last Submission: | 3 August 2016 |
| Delivered at: | Sydney |
| Delivered on: | 16 December 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr Lawrence |
| Solicitors for the Applicant: | Verekers Lawyers |
| Solicitors for the Respondent: | Paladin Law |
| Counsel for the Independent Children's Lawyer: | Mr Jackson |
| Solicitors for the Independent Children's Lawyer: | Maguire & McInerney Lawyers |
ORDERS
That all previous orders in these proceedings are hereby discharged.
That the Father have sole parental responsibility for the child X, born on (omitted) 2012.
That forthwith the child live with the Father.
That until 3 months from the date of these Orders the child not spend time with the Mother.
That commencing 3 months from the date of these Orders the child spend time with the Mother as follows:
(a)Until the child commences school in 2018:
(i)for a period of five hours on the second Saturday of every calendar month, with such time to be supervised by a professional supervised contact service from 11:00am until 4:00pm, or such other times as available by that service.
(ii)the Mother shall ensure that no member of her family be present during the spend time period as set out in Order 5(a)(i).
(iii)For the purpose of Order 5(a)(i) above, the cost of supervision be borne equally between the parents.
(b)From the time that the child commences school:
(i)During school terms:
A.Each alternate weekend from Friday afternoon from after school until the following Monday morning before school (and with such time to be suspended on any weekend coinciding with Father’s Day).
B.From Friday afternoon after school until the following Monday morning before school on the weekend coinciding with Mother’s Day if not consistent with weekends as set out in Order 5(b)(i)(A).
(ii)For the birthday celebrations of the child if it does not coincide with the period set out in Order 5(b)(i)(A):
A.From 9:00am until 5:00pm if it falls on a weekend;
B.From after school until 7:30pm if it falls on a weekday, with such time to take place within 10 kilometres from the child’s school.
(c)Commencing in the year that the child is in Year 1, during school holidays:
(i)For the first half of each school holidays in years ending in an even numbered year to commence on the last Friday school day of the immediate school term prior to that school holiday (with such time to be suspended for the period Christmas Day at 2:30pm until Boxing Day at 8:30pm).
(ii)For the second half of each school holidays in years ending in an odd numbered year to conclude at the commencement date of the school term immediately after that school holiday.
(iii)From Christmas Eve at 12:00pm until Christmas Day at 2:30pm in years ending in an even number.
(iv)From Christmas Day at 2:30pm until Boxing Day at 8:30pm in years ending in an odd number.
(d)For the purpose of Orders 5(b) and 5(c)(iii)-(iv), if the Mother resides more than a total of 2 hour’s travel by car away from the child’s home, the child’s time with the Mother must take place in the Greater Sydney region.
The changeover venue shall be the child’s school if available, but if not available, changeover shall take place at a location nominated by the Mother within a reasonable proximity to the Father’s residence, or alternatively, at the Father’s residence, and the Mother shall:
(a)Nominate a public place within reasonable proximity to the Father’s home; and/or
(b)Nominate a person who is able to facilitate changeover at such public place or the Father’s residence; and
(c)Communicate such details to the Father no later than 72 hours before the proposed changeover.
That from the time the child commences school in 2018, the child have the following parental communication:
(a)Telephone conversation with the Mother between the hours of 6:00pm and 6:30pm on Tuesdays and Thursdays each week when the child is not otherwise spending time with the Mother and to facilitate such telephone calls the Father will have the child available to speak with the Mother;
(b)Telephone conversation with the Mother as the child may request and the Father will facilitate the making of such telephone call;
(c)Reasonable telephone calls with the Father when the child is with the Mother;
(d)Reasonable telephone calls with the Mother when the child with the Father;
(e)Communication from the Mother by way of letters, mail and gifts, and the Father shall be permitted to open such letters, mail and gifts to ensure that such communication does not include denigration of the Father or discussion of these proceedings.
That the Father shall refrain from discussing these proceedings (or any allegations made in the course of these proceedings) and making critical or derogatory remarks about the Mother or members of her family in the presence or within the hearing of any of the children and that the Father shall do all things reasonably necessary to ensure that no other person discusses these proceedings (or any allegations made in the course of these proceedings) or makes any critical or derogatory remarks about the Mother or members of her family in the presence or within the hearing of any of the children.
That the Mother shall refrain from discussing these proceedings (or any allegations made in the course of these proceedings) and making critical or derogatory remarks about the Father or members of his family in the presence or within the hearing of any of the children and that the mother shall do all things reasonably necessary to ensure that no other person discusses these proceedings (or any allegations made in the course of these proceedings) or makes any critical or derogatory remarks about the Father or other members of his family in the presence or within the hearing of any of the children.
That the Father shall ensure the Mother is kept informed as soon as is reasonably practicable of:
(a)any medical problems or illness suffered by the child whilst in the care of the Father;
(b)any medication that has been prescribed for the child;
(c)any specialist medical appointments with any medical doctor, psychiatrist, psychologist, counsellor or therapist regarding the child;
(d)any social, school or religious functions which the child is to attend;
(e)any other matter relevant to the welfare of the child.
That the Mother shall ensure the Father is kept informed as soon as is reasonably practicable of:
(a)any medical problems of illness suffered by the child whilst in the care of the Mother;
(b)any medication that has been prescribed for the child;
(c)any specialist medical appointments with any medical doctor, psychiatrist, psychologist, counsellor or therapist regarding the child;
(d)any social, school or religious functions which the child is to attend;
(e)any other matter relevant to the welfare of the child.
The Father is to keep the Mother informed of his residential address, contact telephone numbers and email address and is to inform her of any change to same within 7 days of such change occurring.
The Mother is to keep the Father informed of her residential address, contact telephone numbers and email address and is to inform him of any change to same within 7 days of such change occurring.
The Mother shall forthwith sign all documents and do all things necessary to cause the Father to be registered as a parent of the child on the Birth Certificate for the child as certified by the New South Wales Registry of Births Deaths and Marriages.
In the event that Mother or Father refuses or neglects to execute any deed, instrument or document that may be considered necessary, the Registrar of the Court be appointed pursuant to section 106A of the Family Law Act 1975, to execute such deed, instrument or document in the name of such party and to do all acts and things necessary to give validity to the operation of the deed, instrument or document.
Any application to enforce, implement, suspend, set aside or vary these Orders should be listed in the first instance before Judge Altobelli, if he is reasonably available and subject to any application that a parent may wish to make.
IT IS NOTED that publication of this judgment under the pseudonym Webb & Guthrie is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT WOLLONGONG |
WOC 341 of 2013
| MR WEBB |
Applicant
And
| MS GUTHRIE |
Respondent
REASONS FOR JUDGMENT
Introduction
This is a difficult and complex case. It is about X born (omitted) 2012. By the time these reasons for judgment are delivered X will be 4 years old.
Background
X’s father is the Applicant. He is 30 years old, lives in (omitted) (a suburb of (omitted) Sydney), and describes himself as a self-employed (occupation omitted). X’s mother is the Respondent. She is also 30 years old. She currently lives in (omitted) (a (omitted) suburb of (omitted)) in Far North Queensland. She conducts a (omitted) business there. The Mother and X only moved to (omitted) late last year.
X’s parents married on (omitted) 2011 and separated six months later in June 2012. This means that X was born after separation and thus she has not lived with her father at all, and indeed, spent relatively little time with him and almost all of this has been on a supervised basis.
The Court must decide where X is to live and what time she should spend with the other parent and under what conditions.
This was a very difficult case to decide. Whilst in many cases it becomes apparent after hearing all of the evidence that a particular order is in the best interests of the child that is not the case here. The Court is confronted with what it will conclude for reasons explained below, the reality that if X continues to live with her mother, she will eventually lose the relationship that she has with her father. If X is ordered to live with her father it will come at a tremendous emotional cost for X. Of course, there is an emotional cost for X if she loses the relationship that she has with either parent. Whatever order the Court makes will result in loss for X.
To that extent, this decision is not about what is in X’s best interest but rather it is a quest to find what is the least of the worst alternatives for her. It will be necessary to go into the evidence in considerable detail. Past events become significant as potential indicators of future conduct.
The litigation between the parents about X first commenced in 2013 with the Father bringing proceedings in this registry of the Court so that he could spend time with his daughter. The first substantive interim order made by the Court was on 27 August 2013 when the Court ordered that the Mother have sole parental responsibility that X live with her mother and have no time or communication with her father.
The final hearing of the first litigation commenced before me on 20 May 2014. X, and both her parents were capably represented by Solicitor and Counsel. The Mother, the Father, the maternal grandmother and three other witnesses gave evidence. On 21 May 2014, the second scheduled day of the hearing, the parents entered into Consent Orders. Before explaining the substantive effect of those Orders it is important to record that Ms L, who prepared a Family Report dated 8 November 2013, had not yet given evidence, but was certainly available to do so. Ms L’s report became Exhibit R1 in the present proceedings. Ms L recommended that the Mother have sole parental responsibility, that X live with the mother and that X have no contact with the Father.
Despite the formidable recommendations contained in this report, the Mother entered into Consent Orders which are reproduced in full in the first Schedule to these Reasons for Judgment. In those Orders the parents agreed that the Mother have sole parental responsibility, that X live with her and that X spend time with her father.
The spends time with provisions of these Orders can only be described as detailed, incremental and graduated in terms of its approach to X’s time with the Father and seemed to reflect very detailed consideration by the parents, their legal advisors and by the Independent Children’s Lawyer and his Counsel. In short, X’s time with her father would continue to be supervised for four months after the making of these Orders but would thereupon become unsupervised.
In the first proceedings, the Mother was represented by Ms Humphreys of Counsel, the Father by Ms Gillies of Counsel and the Independent Children’s Lawyer by Mr Jackson of Counsel. Only Mr Jackson remained in the final proceedings. Even the Independent Children’s Lawyer changed. All of the solicitors and Counsel involved in the first case were experienced in family law and regularly appeared before the Court in Wollongong.
The Court was asked to make the Orders by consent and it did so but notwithstanding Ms L’s report. The dissonance between Ms L’s recommendations and the Consent Orders made is striking. It was no less striking then than it is today. And yet the Court made the Orders on 21 May 2014 convinced that those Orders were in X’s best interests having regard to all of the evidence that was presented before the Court and notwithstanding Ms L's Family Report.
By 11 October 2014, the Orders had broken down with the Mother not making X available for changeover. The date broadly coincides with the first incremental progression in X’s time with the Father in that it would become unsupervised.
The Father commenced the present proceedings on 12 December 2014 when he filed a Contravention Application. The Father then filed a further Application to which the Mother filed a Response. She also sought a stay of the final parenting Orders made 21 May 2014. The second round of litigation had well and truly commenced.
The competing proposals will be discussed below. An Independent Children’s Lawyer was reappointed for X. On 4 May 2015, interim Orders were made for X to spend supervised time with the Father at CatholicCare (omitted) for two hours each week.
Some further background facts might help to put the reasons that follow in context. The Mother had a very difficult childhood with her difficulties extending into her adult years. She was sexually abused as a child and then as an adult. Whilst she has a now very close relationship with her mother, X’s maternal grandmother, the impression created from the evidence overall is that their relationship fluctuated in earlier stages of the Mother’s life.
Both parents were actively involved in local (omitted) churches and it was through church contacts that they met in about (omitted) 2009. The Mother alleged and the Father denied that he was violent towards her in their short period of marriage. They attended counselling to seek to preserve the marriage without success. The Mother obtained an interim domestic violence order in September 2012, but this was revoked in April 2013.
The first stage of the Father’s time pursuant to the Consent Orders made 21 May 2014 proceeded quite smoothly from the Father’s perspective. From the Mother’s perspective she raised concerns about X not sleeping well, holding bowel movements and experiencing breath holding attacks. It was quite clear from the concerns that the Mother articulated that she felt that X was not coping with what was then a supervised spends time with arrangement.
By October 2014, the Mother was beginning to directly express her concerns to the Father via email about the progression of X’s time with him to unsupervised. It will be necessary in the reasons that follow to carefully consider the evidence about the breakdown in the spend time with orders at the time it was to progress from supervised to unsupervised. In this case, potentially much turns on whether the breakdown in the Orders was attributable to misunderstanding, miscalculation, inadvertence or advertence or was in fact attributable to a deeper attitude on the Mother’s part not to support X’s relationship with her father.
The fact is that notwithstanding the Orders, X did not spend time with the Father until after supervised time was ordered by consent on 4 May 2015. That supervised time continued up until the day of the hearing and continues (to the best of the Court’s knowledge) since the hearing.
In August 2015, the Mother’s home at (omitted) was flooded so X and the Mother relocated to the maternal grandparents’ home at (omitted).
In November 2015, X and the Mother travelled to (omitted), Queensland where she accepted work and decided by December 2015 to remain in (omitted) with X. This fact did not become known to the Father and the Court until the Mother filed her trial affidavit on 4 April 2016. Notwithstanding the Mother’s unilateral relocation, X has continued to spend time with her father at the supervised contact centre each alternate weekend in accordance with the Orders.
The circumstances of the Mother’s relocation from the (omitted) area of New South Wales to Far North Queensland will also need to be considered in detail. Again, the focus will be on whether the relocation was both necessary and reasonable from the Mother and X’s perspective or whether (as the Father and Independent Children’s Lawyer contend) it reflects a much deeper attitudinal position of the Mother that the Father has no role to play in X’s life.
Another very important aspect of this case relates to the disclosures that X had been making to her mother the maternal grandmother and indeed to others since February 2015 about her Daddy touching her nappy or bottom. It was the Mother’s case that since February 2015 X has made this disclosure on at least 11 occasions and that these disclosures have been contemporaneously recorded by the Mother and the maternal grandmother in a diary. Ms P, a counsellor working with the Mother and X also heard a disclosure.
The question that is raised starkly in the Mother’s case is whether these disclosures mean that there is an unacceptable risk of abuse associated with X spending time with the Father. The Father’s case is in effect, that X’s disclosures once again demonstrate the deeply held attitude of the Mother that he has no role to play in X’s life.
On 4 May 2015, the Court published its reasons in an interim application brought by the Mother to suspend the existing parenting Orders. Those reasons were published as [2015] FCCA 1353. The Court ordered that X spend supervised time with the father for two hours at CatholicCare (omitted) at times they nominate. The Reasons for Judgment speak for itself. It will be necessary to make reference to this judgment in the reasons below.
The competing proposals
The competing proposals as at the close of final submissions are reproduced in the second Schedule to these reasons.
In short, the Independent Children’s Lawyer proposed that the Father have sole parental responsibility for X, that X live with him and spend time with the Mother commencing from three months after X goes into the Father’s care.
The Father’s proposal was, likewise that he have sole parental responsibility and that X live with him. After a period of no contact with the Mother to assist in settling and developing her attachment to the Father, X would then spend time with the Mother each alternate weekend.
The Mother’s proposal was that she have sole parental responsibility and X live with her. The Mother’s first preference was that X not spend time with the Father. In the alternative, however, she proposed that he have supervised time at CatholicCare (omitted) for two hours each week. If CatholicCare declined or was unable to provide the service, then X would spend time with the Father for two hours each week supervised by Ms J (the maternal grandmother) or such other person as the Court deems appropriate.
The evidence before the Court
The evidence led in the Independent Children’s Lawyer’s case consisted primarily of two reports prepared by Dr S, a consultant child, family and adult Psychiatrist dated 23 October 2015 and 23 February 2016.
The evidence in the Father’s case consisted of his affidavit of 4 April 2016, and that of his wife Ms K, dated 24 March 2016. The Father’s earlier affidavit sworn 23 April 2014 became relevant only insofar as it was the subject of cross-examination on 12 April 2016.
In the Mother’s case, reliance was placed on her affidavit filed 4 April 2016, and the affidavit of Ms P, also of 4 April 2016. As foreshadowed earlier in these reasons, the Mother also relied on the report of Family Consultant Ms L, dated 8 November 2013.
With the exception of Ms L, all of the deponents of the affidavits referred to above were cross-examined.
It is significant to observe that the maternal grandmother did not give evidence in the Mother’s case, even though the Mother acknowledged that she was present at all times during the hearing. The significance of this omission in the evidence was pointed out on several occasions during the hearing. It was pointed out not just by Counsel for the Father and the Independent Children’s Lawyer but by the Court itself.
It was clear from the evidence that the maternal grandmother was a very significant person not just in the Mother’s life but in X’s life. The maternal grandmother’s importance to the proceedings is reflected in one of the Orders sought by the Mother herself, i.e. that Ms J be an alternate supervisor if CatholicCare were not available. The maternal grandmother gave evidence in the first case.
The hearing commenced on 11 April 2016 and continued on 12 and 13 April 2016. It concluded on 4 May 2016.
As it turns out, the omission to lead evidence from the maternal grandmother is not just curious but startling. The nature and extent of the maternal grandmother’s involvement in the life of X and her mother becomes clearly apparent once the evidence is discussed in detail.
The applicable law
In determining parenting matters under Part VII of the Family Law Act 1975 (hereafter referred to as ‘the Act’) the Court must regard the best interests of the child as the paramount consideration: s.60CA.
The objects and principles of Part VII are set out at s.60B:
60B Objects of Part and principles underlying it
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
(3) For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a) to maintain a connection with that culture; and
(b) to have the support, opportunity and encouragement necessary:
(i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii) to develop a positive appreciation of that culture.
At the very core of Part VII of the Act is the creation of a presumption of equal shared parental responsibility in s.61DA. Section 61DA provides:
61DA Presumption of equal shared parental responsibility when making parenting orders
(1) When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b) family violence.
(3) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4) The presumption may be rebutted by evidence that satisfies the court 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.
If the presumption applies, the Court is required to consider certain things:
65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances
Equal time
(1) If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Substantial and significant time
(2) If:
(a) a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and
the court must:
(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
(3) will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4) Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b) the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
Because s.65DAA refers to the best interests of the child the Court must then go back to consider s.60CC which specifies how the Court must determine what is in a child’s best interests.
Determining child's best interests
(1) Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
(2A) In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
Additional considerations
(3) Additional considerations are:
(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;
(b) the nature of the relationship of the child with:
(i) each of the child's parents; and
(ii) other persons (including any grandparent or other relative of the child);
(c) the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
(ca) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
(f) the capacity of:
(i) each of the child's parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j) any family violence involving the child or a member of the child's family;
(k) if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m) any other fact or circumstance that the court thinks is relevant.
In MRR v GR [2010] HCA 4, the High Court said
8. Sub-section (1) of s 65DAA is headed "Equal time" and provides:
"If a parenting order provides (or is to provide) that a child's parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents." (emphasis added)
Sub-section (2) makes provision for where a parenting order provides that a child's parents are to have equal shared parental responsibility for the child (par (a)) but the Court does not make an order for the child to spend equal time with each of the parents (par (b)). In such a circumstance the Court is obliged to:
"(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents."
Sub-section (3) explains what is meant by the phrase "substantial and significant time".
9. Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the Court determine that question. Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the court considers relevant", "[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents".
A little later in the judgment the High Court said:
13. Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)). It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order.
This is a case involving allegations of child sexual abuse. A comprehensive statement of the applicable law in these difficult cases is contained in the Full Court’s decision in W and W (abuse allegations: unacceptable risk) [2005] FamCA 892, at paragraphs 92-115. Whilst this extract is lengthy, the law is complex and the context of these cases is always one of high levels of emotion and concern for the parents and other persons involved. It is important for all who are affected by this case to know what is the relevant law:
92. The High Court’s unambiguous statement in M and M is that a trial Judge should not make a positive finding of sexual abuse unless the high standard of certainty referred to in Briginshaw (now s 140 of the Evidence Act 1995 (Cth) (“the Evidence Act”)) is discharged.
Unacceptable risk test
(a) What is meant by “unacceptable risk”?
93. In his submissions before us counsel for the father has referred us to recent decisions of this Court decided after M and M in dealing with cases involving child sexual abuse, and in particular, with the manner in which subsequent decisions have applied the principles enunciated therein.
94. Prior to our consideration of these decisions we find it appropriate, as a starting point, to re-state what may be regarded as obvious, that is, the significant detrimental harm to a child who is sexually abused. Although contained in a dissenting judgment, the discussion of Fogarty J about the effect of sexual abuse on a child remains as poignant and relevant as it was in 1996. In N and S and the Separate Representative (1996) FLC 92-655 at 82,709 his Honour said:
“(i) The reality of sexual abuse
The sexual abuse of a young child by a parent or care-giver or other person associated with that household is so alien to the concepts and actions of most people in the community that there is an understandable resistance to accepting that it may or does occur. Regrettably, the actuality is otherwise.
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It is difficult to overstate the importance of protecting children from sexual abuse, and from the consequences which often follow from sexual abuse. Sexual abuse involves the most severe exploitation of children, the most serious invasion of their rights to personal integrity and freedom, and the most serious denial of their rights to personal growth and development. Its effects, both in the short and long-term, can be devastating.”
95. We also have regard to Fogarty J’s acknowledgment of false allegations. At 82,711 his Honour, referring to Thomas J’s judgment in S v S [1993] NZFLR 657, said:
“courts must be aware that not all allegations of sexual abuse are true. False allegations may be made either by parents acting in good faith, as a result of a misperception of information about their child, or by parents deliberately fabricating allegations in order to gain an advantage in proceedings. Ambiguous events often have an innocent explanation.”
96. The core principles in the determination of a case of alleged sexual abuse are those enunciated by the High Court in M and M:
“In proceedings under Pt VII of the Act in relation to a child, the Court is enjoined to ‘regard the welfare of the child as the paramount consideration’ (sec. 60D). The paramountcy of this consideration in proceedings for custody or access is preserved by sec. 64(1). The consequence is that the ultimate and paramount issue to be decided in proceedings for custody of, or access to, a child is whether the making of the order sought is in the interests of the welfare of the child. The fact that the proceedings involve an allegation that the child has been sexually abused by the parent who seeks custody or access does not alter the paramount and ultimate issue which the Court has to determine, though the Court’s findings on the disputed allegation of sexual abuse will naturally have an important, perhaps a decisive, impact on the resolution of that issue.
But it is a mistake to think that the Family Court is under the same duty to resolve in a definitive way the disputed allegation of sexual abuse as a court exercising criminal jurisdiction would be if it were trying the party for a criminal offence. Proceedings for custody or access are not disputes inter partes in the ordinary sense of that expression: Reynolds v. Reynolds (1973) 47 A.L.J.R. 499; 1 A.L.R. 318; McKee v. McKee (1951) A.C. 352 at pp. 364-365. In proceedings of that kind the Court is not enforcing a parental right of custody or right to access. The Court is concerned to make such an order for custody or access which will in the opinion of the Court best promote and protect the interests of the child. In deciding what order it should make the Court will give very great weight to the importance of maintaining parental ties, not so much because parents have a right to custody or access, but because it is prima facie in a child’s interests to maintain the filial relationship with both parents: cf. J. v. Lieschke (1987) 162 C.L.R. 447 at pp. 450, 458, 462, 463-464.
Viewed in this setting, the resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the Court’s determination of what is in the best interests of the child. The Family Court’s consideration of the paramount issue which it is enjoined to decide cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse. The Family Court’s wide-ranging discretion to decide what is in the child’s best interests cannot be qualified by requiring the Court to try the case as if it were no more than a contest between the parents to be decided solely by reference to the acceptance or rejection of the allegation of sexual abuse on the balance of probabilities.
In considering an allegation of sexual abuse, the Court should not make a positive finding that the allegation is true unless the Court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v. Briginshaw (1938) 60 C.L.R. 336 at p. 362. There Dixon J. said:
‘The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences.’
His Honour’s remarks have a direct application to an allegation that a parent has sexually abused a child, an allegation which is often easy to make, but difficult to refute. It does not follow that if an allegation of sexual abuse has not been made out, according to the civil onus as stated in Briginshaw, that conclusion determines the wider issue which confronts the Court when it is called upon to decide what is in the best interests of the child.
No doubt there will be some cases in which the Court is able to come to a positive finding that the allegation is well-founded. In all but the most extraordinary cases, that finding will have a decisive impact on the order to be made respecting custody and access. There will be cases also in which the Court has no hesitation in rejecting the allegation as groundless. Again, in the nature of things there will be very many cases, such as the present case, in which the Court cannot confidently make a finding that sexual abuse has taken place. And there are strong practical family reasons why the Court should refrain from making a positive finding that sexual abuse has actually taken place unless it is impelled by the particular circumstances of the case to do so.
In resolving the wider issue the Court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assessing the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child’s welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access. In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access. Even in such a case, however, there may be a risk of disturbance to a child who is compulsorily brought into contact with a parent who has sexually abused her or whom the child believes to have sexually abused her.
Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. The degree of risk has been described as a ‘risk of serious harm’ (A. v. A. (1976) V.R. 298 at p. 300), ‘an element of risk’ or ‘an appreciable risk’ (M and M (1987) FLC ¶91-830 at pp. 76,240-76,242; (1987) 11 Fam. L.R. 765 at pp. 770 and 771 respectively), ‘a real possibility’ (B and B [Access] FLC 91-758 at p. 75,545), a ‘real risk’ (Leveque v. Leveque (1983) 54 B.C.L.R. 164 at p. 167), and an ‘unacceptable risk’ (In re G. (a minor) (1987) 1 W.L.R. 1461 at p. 1469). This imposing array indicates that the courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child’s paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.”
97. An examination of cases in Australia following M and M and subsequent to the amendments to the Act by reason of the Family Law Reform Act 1995 (“the Reform Act”) demonstrate some of the practical difficulties in applying the principles enunciated in M and M.
98. In B and B the trial Judge was found by the Full Court to have correctly applied the Briginshaw test in reaching his finding that the father had acted in a sexually inappropriate way with the children the subject of the application, and then considering that the children should continue to have access (as contact was then defined) to the father, such access to be supervised for a defined period with provision for a further expert report. In their joint judgment Fogarty, Baker and Purvis JJ at 79,778 discussed the relevant principles to be applied in a sexual abuse case having regard to the High Court’s decision in M and M. Their Honours said:
“The test propounded by the High Court in M and M and which is authoritative in this jurisdiction, is:-
‘that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.’ (at page 77,081)
The ‘unacceptable risk’ test is therefore the standard used by the Family Court to ‘achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access’. In other words, where the Court makes a finding of unacceptable risk it is a finding that the risk of harm to the children in having access with a parent outweighs the possible benefits to them from that access.
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It should be noted that the M and M ‘unacceptable risk’ test is employed within the context of ‘resolving the wider issue’, namely the determination of what is in the best interests of the child, to which principle the unacceptable risk test was said by the High Court to be ‘subservient and ancillary’. The overriding consideration in all custody and access decisions is the welfare of the child: see s64(1)(a) of the Family Law Act and Brown and Pedersen (1992) FLC ¶92-271.”
99. Their Honours further commented on the fact that a finding of unacceptable risk in respect of unsupervised contact did not “preclude a finding that there is no unacceptable risk to the child if supervised contact is ordered”.
100. One of the issues in B and B was whether an order for supervised contact by a family member or friend was appropriate. The Full Court’s findings on supervised contact have been subject of criticism in subsequent cases (see Re C and J at 83,341 and 83,342 per Fogarty and May JJ). The discussion in the latter case on types of supervision and treatment are particularly apposite in this case.
101. It is however important to note at the time of both decisions the availability in Australia of professionally supervised contact in accredited children contact centres was not widespread, the Commonwealth Government funding the first pilot of 10 children’s contact centres commencing in 1995-1996 through its Family Relationship Service Program.
102. In K v B the father asserted that the trial Judge had not applied the appropriate test in determining whether an unacceptable risk of sexual abuse existed. The trial Judge found, on the balance of probabilities, he could not be satisfied that the father had sexually abused the child, and went on to find however that he could not be satisfied he did not do so. The trial Judge then determined, after looking at the evidence as a whole, there was an unacceptable risk of sexual abuse if he ordered unsupervised contact. In his dissenting judgment Kay J emphasised the right of a child to maintain personal relationships with both parents on a regular basis and said at 80,967:
“With the greatest respect to their Honours in B and B I have difficulty in seeing how that conclusion can be drawn from the words in M and M. All I read M and M as saying in the passage referred to is that the presence or absence of a risk of sexual abuse is not necessarily determinative of whether access is granted. Other issues such as the effects on the child of having to confront the abuser need to be taken into account.”
103. In N and S allegations of sexual abuse of a 4 year old child were made with the child naming the father as the perpetrator. The father denied the allegation. The trial Judge had before him expert evidence from a child psychiatrist. The trial Judge said that the expert had stated that it was most likely that the child had not been abused by either the father or the mother’s new partner, that the child used accusations to get attention from the mother, and the child was not truthful. There was evidence before the trial Judge of a social worker from a child sexual assault service who believed the child had been sexually assaulted by the father. The trial Judge’s findings on sexual abuse were recorded by the majority (Kay and Hilton JJ) at 82,732 as follows:
“Coleman J, as well as Dr Fairley, concluded that he could not entirely discount the possibility that the child may have been sexually interfered with and may have been sexually interfered with by the father. Coleman J concluded on the balance of probabilities that this did not happen. He was not however prepared to conclude that it certainly could not have happened.”
104. Their Honours noted, as in this case, that the appeal was from a discretionary judgment, and the relevant principles to be applied in such a case. They then (at 82,740) referred to the passage in M and M (set out by us in paragraph 96) and said:
“Whilst the High Court did not further expand on what circumstances might create such an unacceptable risk, Coleman J, weighing up all the material before him, concluded that there would be no such risk to the child during the proposed six month access trial.”
105. In his judgment, which was in dissent as to the outcome of the appeal, Fogarty J discussed the question of what is meant by the term “unacceptable risk” and reviewed earlier authorities concluding “it is inevitable that Courts will have to make some effort to quantify the relevant risk”. He then said at 82,714:
“In asking whether the facts of the case do establish an unacceptable risk the Court will often be required to ask such questions as: What is the nature of the events alleged to have taken place? Who has made the allegations? To whom have the allegations been made? What level of detail do they involve? Over what period of time have the allegations been made? Over what period of time are the events alleged to have occurred? What are the effects exhibited by the child? What is the basis of the allegations? Are the allegations reasonably based? Are the allegations genuinely believed by the person making them? What expert evidence has been provided? Are there satisfactory explanations of the allegations apart from sexual abuse? What are the likely future effects on the child?
This is not a catalogue of the correct questions, but a reminder that it is questions such as these which are required to be considered in deciding whether an unacceptable risk may be shown. The weight to be attached to the various answers to the relevant questions will inevitably vary from case to case. But it is essential that questions like these be asked.”
106. His Honour went on to discuss the standard of proof necessary for a finding of unacceptable risk. His Honour did not advocate a two step approach, that is, a consideration of whether or not sexual abuse was proved on the balance of probabilities, and a second step of assessing unacceptable risk to the same standard. He expressed the requirement at 82,715 as follows:
“There is no requirement to ask whether the evidence satisfies a balance of probabilities finding in favour of abuse, though that may nevertheless be useful in some cases. There is, however, a requirement to ask whether the evidence establishes an unacceptable risk.”
107. The Full Court in WK v SR (Baker, Kay and Morgan JJ) at paragraph 48 reaffirmed the consequences to a child in a residence or contact dispute of a finding of sexual abuse proved to the standard required by s 140 of the Evidence Act and held:
“...In these circumstances, evidence which, for example, is relevant and probative in relation to the question of unacceptable risk of abuse occurring, may not be relevant or probative when deciding whether or not a specific incidence of abuse has in fact occurred.”
108. In V and V [2004] FamCA 1081 Finn, Kay and Holden JJ considered specifically s 60B of the Act and whether the benefits of contact for the children outweighed the risks of such contact. In this case the trial Judge found that the children had been sexually abused, but was unable to determine the identity of the perpetrator. The trial Judge refused to make orders for either supervised or unsupervised contact on the basis that such contact would pose an unacceptable risk to the children. Having carefully reviewed the evidence in the case, their Honours set out the submission made by counsel for the Child Representative at paragraph 56 as follows:
“Accordingly it was put by Mr [M] that any finding that the father had in fact been involved inappropriately with these children, or might have been inappropriately involved with the children to the point where he would create a serious danger to the children could only be sustained if the Court had been properly aware of the gravity of upholding such an assertion in accordance with Briginshaw principles. An order for no contact is a grave order which should only be made upon very strong proper supporting evidence.”
109. The Full Court held that the trial Judge was in error in finding there was a real risk of sexual abuse if there was unsupervised contact, having made no positive finding that it was more likely than not that the father was the perpetrator.
110. In TF and JF and Children’s Representative [2005] FamCA 394 May J highlighted that the “concept of unacceptable risk is one that is far from settled in its application to many family situations”. May J, having found that the evidence in the case, “objectively viewed reveals the potential for an unacceptable risk to the children if contact with the father is not supervised...” then referred to the difficulty associated with long term supervised contact and said “the necessity for contact to be supervised apparently indefinitely leads to the need to finely balance what is in the children’s best interests”. Her Honour then said:
“Whilst supervised contact in this case will protect the children from any potential physical harm, the effect on their emotional well-being cannot be ignored.”
111. In summary, the law is well settled as to the standard of proof required to make a positive finding of sexual abuse, and that such a finding should not be made unless a trial Judge is satisfied to the highest standard, on the balance of probabilities abuse has occurred. We accept, as a matter of practice, a trial Judge will almost inevitably be required in a case where sexual abuse allegations are raised to consider whether abuse has been proven on the balance of probabilities as well as considering whether or not an unacceptable risk of abuse exists. The High Court in M and M recognised the difficulty in defining with any degree of precision what constitutes an “unacceptable risk” and the cases determined after that decision testify to the difficulty. However, the questions posed by Fogarty J in N and S, and referred to by us in paragraph 105, do provide a structure or framework which may assist a trial Judge to assess future risks to a child.
(b) The contact issue
112. In Re W (Sex abuse: standard of proof) at 93,192 and in TF and JF at paragraph 53 the Court emphasised the importance of maintaining a worthwhile relationship between a parent and child, and that termination of such relationship “ought, in most cases, be the course of last resort”. We acknowledge that s 60B emphasises the objects of Part VII of the Act and that generally children have a right to know and be cared for by both their parents. This provision was the subject of discussion by the Full Court in B and B: Family Law Reform Act 1995 (1997) FLC 92-755 at 84,213-84,217. The objects provision is, of course, subject to the exception that the provisions do not apply when it is or would be contrary to a child’s best interests.
113. The practical difficulties in assessing an unacceptable risk are highlighted by May J at in paragraph 74 of TF and JF. Further, at paragraph 94, the tension between the protection offered by supervised contact (and the maintenance of a child’s relationship with his or her parent) and that child’s emotional well-being is considered. We have not in our discussion of unacceptable risk canvassed in any detail the question of the impact of contact on the resident parent as it is not relevant in the actual circumstances of this case, nor is E’s emotional well-being in issue.
114. Further we note it is not always possible to provide for appropriate supervision particularly if a children’s contact centre is not a practical option. Centres too have their limitations. The guidelines established between courts administering the Act and children’s contact centres accredited by the Commonwealth Department of Family and Community Services recognise that “long term supervision may not be in a child’s best interests” and place emphasis on the need to move to “self management” by parents and others availing themselves of the present restricted services.
115. We appreciate that the decisions in these difficult cases have the potential for long term consequences for a child, and that they require very careful consideration. We do not think it is appropriate or practical to set guidelines as to when supervised contact could or should be ordered, or whether such contact should be in a professionally run contact centre or supervision by private arrangement. The latter, which was deemed appropriate in the circumstances of this case, affords a potentially longer term solution which is likely to afford the opportunity for enjoying more realistic and relaxed parenting time between a parent and child.
In WK v SR (1997) FLC 92-787, the Full Court emphasised the standard of proof that applies in these cases at para.47:
In children’s matters under Part VII of the Family Law Act, where the issue is a child’s contact or residence with a significant person in his or her life, the grave consequences of a finding of sexual abuse cannot be overstated. Accordingly, before trial Judges find themselves impelled to make a positive finding of sexual abuse, as opposed to a finding of unacceptable risk, the standard of proof they are required to apply must be towards the strictest end of the civil spectrum as set out in Briginshaw and s140 of the Evidence Act 1995 (Cth). Inexact proofs, indefinite testimony, or indirect inferences are insufficient to ground a finding of abuse.
In Re W (Sex Abuse: Standard of Proof) [2004] FamCA 768, in referring to WK v SR the Full Court observed at paras.18-19:
18. In setting out those authorities it does not appear that his Honour paid any attention to the views of the Full Court in
WK v SR where the Court emphasised the very high standard by which a Court needs to be satisfied on the balance of probabilities that something has actually occurred. Unless such a rigorous approach is taken, where the often-inevitable result of a positive finding is a cessation of the relationship between parent and child, there is a major risk of inflicting upon the parent and child the disastrous effects of a positive finding that is reached in error.
19. The termination of a worthwhile relationship between the parent and child ought in most cases be the course of last resort. The Court should not shy away from reaching such a result in an appropriate case but at all times judges should be conscious that the adversarial or inquisitorial systems often reach results that are artificial. The truth does not always come out. A false negative finding accompanied by appropriate safeguards as to the future relationship between parent and child, such as adequate supervision to guard against possible abuse, may be far less disastrous for the child than an erroneous positive finding that leads to a cessation of the parent-child relationship. The Court needs to be remain conscious of this imperfection at all times.
In that same decision, the Full Court made some important comments about expert evidence in the context of these cases, at paras.38-39:
38. In Re W Abuse Allegations; Expert Evidence (2001) FLC 93-085 Nicholson CJ and O'Ryan J (with whom Kay J agreed on this point) warned of giving weight to expert evidence of a psychiatrist who had not seen the parties nor the children but had reviewed the material. Their Honours said at para 147 "...there are grave dangers in reliance upon expert evidence given in such circumstances."
39. Whilst much of their Honours' rejection of the evidence of the psychiatrist in Re W appears to turn on the fact he was retained by one side and must have brought unconscious bias to his task, in our view the criticism of relying upon an opinion about the ultimate issue from a witness who has not seen the parties nor the children remains just as valid when the witness is called by the court. If an expert witness still purports to give an opinion as to the ultimate issue then such opinion would be expected to be heavily qualified by the expert having regard to the fact that the expert had not seen the parties nor the children.
It should also be remembered that Division 12A of Part VII of the Act applies as much to proceedings involving these serious allegations as it does to other child-related proceedings. In each case, consideration needs to be given as to whether s.69ZT(3) should be invoked, thus reinstating the application of certain provisions of the Evidence Act 1995, in whole or in part, as regards an issue in the proceedings. The Court needs to give consideration to this, whether or not it is raised by the parties, but the Court also needs to have regard to the need to protect the child from harm, as well as protect the rights of those against whom serious allegations are directed. The Court must also not lose sight of the fact that even though s.100A of the Act has been repealed thus potentially excluding evidence of disclosures made by children if s.69ZT(3) is invoked, s.69ZV seems to be intended to, in effect, reinstate s.100A.
General observations about the witnesses
The Father and his wife Ms K both gave evidence in a clear, concise, cooperative, matter-of-fact and responsive manner. They were both impressive witnesses.
The situation with the Mother is far more complex. Firstly, it must be acknowledged that the Mother was clearly anxious by disposition. The proceedings were a real strain for her. She was extensively cross‑examined for long periods of time. While she was always courteous and cooperative, she was also at times unresponsive. There were times when the Court had the distinct impression that the Mother knew more than she was prepared to acknowledge (and where relevant this will be discussed in detail below).
However, there were also times when the Mother was disarmingly honest. For example, when it was put to her that when the spends time with orders broke down towards the end of 2014 and the Father made a number of proposals to her with a view to addressing her concerns that in reality any proposal he advanced would have been unreasonable to the Mother, she agreed.
The Court is inclined to accept that the Mother’s evidence was honestly given, albeit perhaps based on her perception of events, rather than what the actual events were as the Court finds it.
Mr P gave evidence in the Mother’s case. There are limitations in her evidence that will be discussed below but there is no question about the integrity of Mr P’s evidence.
Dr S gave evidence. Her manner was strident which should not be interpreted as a criticism of her as an expert witness. It is possible that Dr S made a number of assumptions that were not ultimately borne out in the evidence as the Court finds it. This does not necessarily detract from her ultimate recommendations. The solicitor for the Mother, Mr Davidson, very methodically cross-examined Dr S about aspects of her evidence and to her credit, she clarified some of the assumptions she had made and amended them and did ultimately seem willing to accept that this was a case where the complexity of the problem, and the sensitive response needed, was not necessarily consistent with a strident approach.
This is the Court’s assessment of her evidence overall, but should not be taken as a narrative of what Dr S said. Where relevant, Dr S’s evidence will be considered in considerable detail.
The Final Consent Orders made 21 May 2014
All parties in this case submitted that there was no Rice & Asplund issue in this case. The Court agrees. X’s circumstances changed significantly between the date of the final Consent Orders and the present hearing. It was, in any event, very much in her best interests that this matter be re-litigated in a case where the Mother’s position had changed so dramatically from the Consent Orders she originally entered into. The Father’s position had likewise changed dramatically, albeit after the receipt of Dr S’s report. Even the Independent Children’s Lawyer’s position changed dramatically. There is no need to say anything further about the Rice & Asplund issue in these Reasons for Judgment.
Paragraph 3 of the Mother’s trial affidavit filed 4 April 2016 states as follows:
On 21 May 2014 I signed the consent orders for the applicant to spend time with X because I was scared that X‑X was going to be taken from me. My then solicitors had expressed concerns that the court thought that I was mentally unstable and an unfit mother. I was too upset to be able to read what I was signing at the time and was told to hurry and quickly sign it, it is everything I had agreed. Afterwards at McDonald's (omitted) when my family read the orders to me they were not what I thought I was signing. In particular the handover at (omitted) was to be once a year on Christmas Day, after X‑X had turned three at McDonald's (omitted), and overnight was not meant to start until X was in school. I was also told that CatholicCare would be available every weekend.
Before considering the cross-examination of the Mother about this issue, some important observations need to be made. Firstly, whilst the Mother deposes to her fear that X was going to be taken from her, that was not the Father’s proposal at the time of the first hearing, and it was not the Independent Children’s Lawyer’s proposal. It is very difficult, therefore, to see any rational basis for the Mother’s fear that X was going to be taken away from her at that time.
Secondly, the Mother’s evidence about the Consent Orders that she intended is set out with little particularity. Given the importance of the issue, and her clear assertion that the Orders “were not what I thought I was signing”, the Court would have expected greater particularity in the Mother’s evidence about what, precisely, she thought the agreement was. In paragraph 3 of her affidavit she says, for example, that she thought the handover at (omitted) was to be once a year on Christmas Day. Order 5 of the Consent Orders state:
5. The venue for Changeover shall be as agreed between the parties, but if there is no agreement, changeover shall be in order of priority in relation to its availability:
5.1The child’s school (as relevant to sub-paragraphs 3.10 and 3.11)
5.2The Catholic Care, (omitted).
5.3The entrance to the McDonalds Family Restaurant, (omitted).
The concern is not just that the Mother’s belief is so different from the order actually made, but the magnitude of the difference, which is really quite stark. Moreover, the Mother’s assertion that overnight time was not meant to start until X was in school again stands in stark contrast to Order 3.6, which introduces overnight time on a Saturday night commencing from 16 months from the date of the order which would be in effect 16 months from the commencement of the Father having supervised time with X using CareSouth (as prescribed by Order 3.1).
If one assumes that this supervised time commenced one month after the date of the Orders, i.e. 21 June 2014, this means that overnight time would have commenced by about 21 October 2015 when X would have been about 3 years old. Again, the significance of this is the starkness and magnitude of the difference between what the Mother actually agreed to but what she now says retrospectively she intended to agree to.
The Mother claims to have been upset, indeed too upset to be able to read what she was signing. The Mother claims that she was time pressured. All of that may well be true, but the fact is that she was represented by experienced Solicitor and Counsel. The Court must be very careful in accepting a litigant’s retrospective view on Orders made particularly in circumstances such as the present case where compliance with the Orders became so problematic.
The Mother’s attitude about X’s relationship with her father is one of the most important issues in this case. Her evidence in cross‑examination was quite clear – she did not want the Father to have a relationship with X. That was her position in the original litigation. It remained her position in the present case. The attitude inherent in such a position may well manifest itself in an attempt to reconstruct history so that past events can be rationalised in a way to conform with her position.
In any event, the Mother was cross-examined about this issue. She explained in cross-examination that she first became aware that the Orders did not reflect what she had agreed to after leaving the Court and asking her mother to read them to her at McDonald’s. Of course, the maternal grandmother was not made available to give evidence about this.
The Mother agreed that the entire afternoon of the third day of the original hearing was spent negotiating the Consent Orders. She was given the opportunity to provide particulars about what she did not agree with. At the top of her list was overnight contact. She said at transcript, 12 April 2016, page 86, lines 14-16:
I had said that I didn’t want X to have overnight access before she was in school because she was not old enough to be able to defend herself at that – at such a young age.
In cross-examination, the Mother explained that she came back to the Court the next day, having been unsuccessful in contacting her lawyer and Counsel. She says she was told certain things. She agreed that she eventually obtained legal advice and did consult with lawyers about the predicament in which she found herself. She also agreed, however, that she did not make an application to the Court as a result of that. What actually happened, of course, was that the Orders broke down in circumstances that will be discussed below.
The Court does not accept the Mother’s contention that the final Consent Orders made 21 May 2014 did not reflect the agreement made. The mere assertion of this was not made until much later and in the context of the second round, i.e. the present litigation. The Mother’s assertion is not plausible. She may well have been unhappy with the outcome as indeed many litigants are, but that is not the same as saying that the Consent Orders did not reflect her intentions.
The sheer magnitude of difference between what the Consent Orders actually say and what the Mother contends they should have said casts doubt on the Mother’s assertions. The Orders reflect careful consideration and detailed drafting. The fact is that the Mother complied with Orders 3.1-3.3 and, as will be seen below it was only when the contact was to proceed to unsupervised that issues arose.
Reasons for the breakdown of the 21 May 2014 Orders
X’s time with the Father pursuant to the final Consent Orders took place on 12 June 2014. The last time was 9 October 2014. All of these visits were supervised by CareSouth. There were a few weeks when X was unavailable due to being sick and the Father takes no issue with this.
The Mother gives evidence about this period commencing from paragraph 4 of her trial affidavit. She expresses a number of concerns about X during this period. For example, X had to be distracted at changeover whilst the Mother left the room. She was clingy and unsettled on return. Her sleep and bowel movement patterns became disrupted. She started having breath holding attacks and going unconscious for sometimes up to a minute. By about August 2014, X began not wanting to have her nappy changed. The Mother raised her concerns with Care South and indeed these are duly recorded.
Paragraph 6 of the Mother’s affidavit bears reproduction in these reasons for judgment. She deposes:
From the commencement of the applicant’s supervised time with X in June 2014, when we returned home, X‑X became clingy and did not want to be left in a room by herself. We could not go to the toilet unless she came, we could not hang out the washing, we could not go from one room to the next without her or she would get distressed and cry and scream.
The reference to the word “we” is interesting. As a result of the Mother’s evidence in cross-examination and a study of the Mother’s diaries that came into evidence, the Court is able to safely conclude that in paragraph 6 the Mother is referring not just to herself but to the maternal grandmother as well. Clearly, on the Mother’s own evidence the maternal grandmother was intimately involved in X’s day to day life and the Court can only once again lament the absence of any evidence from her.
The Mother’s diary became Exhibit ICL2. More will be said about the forensic weight to be given to this document at a later time. For present purposes, however, it records the Mother’s perception of events commencing from 12 June 2014. A constant theme of the diary entries is X’s disrupted sleep patterns, particularly after contact visits with her father. Another recurrent theme is the Mother’s perception that the Father is watching her at changeover.
The entry of 9 September 2014 clearly indicates that the Mother was aware that the supervised access visits were about to end. The context of the entry was whether CareSouth would facilitate the changeovers. It is interesting to observe the absence of any surprise or concern by the Mother about the end of supervised contact. This is not consistent with the concerns that she expresses in paragraph 3 of her affidavit, discussed in the previous section of these reasons.
The Mother was cross-examined about the events during this period. In order to understand the cross-examination better, the correspondence between the parties often using the agency of third parties needs to be considered. The correspondence in question is contained in the exhibits to the Mother’s affidavit. Based on this evidence, it seems that the first of the relevant communications were initiated by the father using the agency of Ms S from CareSouth who had hitherto been supervising the Father’s time pursuant to the Court Orders.
The first communication took place on 1 October 2014 at 4:51pm between Ms S and the Mother at her email address, i.e. (omitted). The email makes it clear that the communication with the Mother was at the Father’s request and was designed to pass information on. The issue was clearly the transition from supervised time to unsupervised time. It is a request for the Mother’s feedback.
The first assertion was that the last supervised time would be 9 October and the first unsupervised time would be 18 October. The location of the changeover was proposed to be McDonald’s in (omitted), but the option of using CatholicCare in (omitted) as a short term solution was clearly raised. Ms S from CareSouth appeared to also raise the possibility of their continuing involvement but only to supervise changeover and provided a cost estimate for this. The email also conveys the Father’s desire to use a communication book so that he could be kept up to date with any health concerns relating to X.
The last paragraph of the email states:
I am mainly looking for confirmation that you also believe the last supervised visit is to happen on 9.10.14.
On 7 October 2014 at 10:03am, the Mother responds to Ms S’s email stating:
I can confirm those dates.
Before considering the next email in the chronological sequence, it is significant to revert to what the Consent Orders of 21 May 2014 state in relation to changeover. Order 5 states:
The venue for Changeover shall be as agreed between the parties, but if there is no agreement, changeover shall be in order of priority in relation to its availability:
5.1 The child’s school (as relevant to sub-paragraphs 3.10 and 3.11)
5.2 The Catholic Care, (omitted).
5.3 The entrance to the McDonalds Family Restaurant, (omitted).
The email communication initiated by the Father seems to be an attempt to reach agreement about changeover but the order expressly contemplates the possibility that no agreement could be reached and thus specifies the range of alternatives set out above.
On Tuesday, 7 October 2014 at 11:19am, the Father emails the Mother care of her lawyer, Clare Jennings. He explains that he is representing himself and his belief that she, i.e. Ms Jennings was acting as agent for the Mother. He states that in view of unsupervised contact starting on 18 October at (omitted) McDonald's he would “like to have some communication to confirm we are all on the same page and things can go as smoothly as possible for X.” The Father explains that he was happy to communicate directly with the Mother or through her Solicitors. He once again asks that a communication book be used so that he might “be made aware of any health, allergies developments, etcetera, for X. I want this to be as easy as possible Ms Guthrie.”
It is unclear from the evidence when this email was actually forwarded to the Mother. It clearly evidences the Father’s attempt to engage with the Mother in terms of implementing the progression from supervised to unsupervised time.
Each party shall authorise the child's school to provide copies to the other parent of all relevant documents that would otherwise be provided to parents of students enrolled in at school.
That the Mother shall take all recent steps keep the Father informed of any significant developments in relation to the child's development including her health and education.
That the Mother shall forthwith sign all documents as required so as to cause the Father to be registered as a parent of a child on an amended birth certificate as certified by the New South Wales Registry of Births Deaths and Marriages.
Each party shall forthwith sign any document necessary to give effect to these orders.
In the event that either party refuses or neglects to sign or neglects to sign the documents necessary to give effect to these orders the Registrar of the Federal Circuit Court shall sign any necessary document on behalf of the defaulting parent.
Each party shall keep the other advised of a postal address and, if appropriate, an email address at which they might be contacted for the purposes of giving written notice pursuant to these orders.
Both parties are restrained from denigrating or criticizing the other parent, or member of their household or family in the presence or hearing of the child and shall immediately remove the child from the presence or hearing of any third person who does so.
Both parties are at liberty to travel outside of the Commonwealth of Australia with the child provided that:
15.1They provide the other parent with at least 8 weeks written notice of their intention to travel overseas such notice to include copies of all itineraries and contact details for the child whist she is away.
| Dated: We consent to the making of orders by the Court in the above terms | ||||||
| Applicant | Respondent | |||||
| Dated | / / | Dated | / / | |||
| Independent Children's Lawyer | ||
| Dated | / / | |
Schedule Two
Applicant Father’s proposed Minute of Order
The father have sole parental responsibility for the child X born (omitted) 2012;
That the child live with the father;
That the mother spend time with the child:
3.1Each alternate weekend from 5:00pm Friday to 5:00pm Sunday;
3.2Such further and other times as agreed between the parties from time to time;
That the Father shall refrain from making critical or derogatory remarks about the Mother or members of her family in the presence or within the hearing of any of the children and that the Father shall do all things reasonably necessary to ensure that no other person makes any critical or derogatory remarks about the Mother or members of her family in the presence or within the hearing of any of the children.
That the Mother shall refrain from making critical or derogatory remarks about the Father or members of his family in the presence or within the hearing of any of the children and that the mother shall do all things reasonably necessary to ensure that no other person makes any critical or derogatory remarks about the Father or other members of his family in the presence or within the hearing of any of the children.
That each parent be entitled to attend all events involving the child including, but not limited to:
6.1sporting fixtures;
6.2extracurricular activities that allow for parental attendance or participation;
6.3school functions and events that allow for parental attendance or participation – AND the parent who has the child in their care on the day of such activity will be responsible for the day to day care of the child at such event including the child’s transportation to and from the event unless otherwise agreed upon between the parties.
That the Father shall have sole responsibility for making decisions about the child’s day to day care, welfare and development during times the child lives with or spends time with the Father.
That the Mother shall have sole responsibility for making decisions about the child’s day to day care, welfare and development during times the child lives with or spends time with the Mother.
That the Father shall ensure the Mother is kept informed as soon as is reasonably practicable of:
9.1any medical problems or illness suffered by the child, whilst in the care of the Father;
9.2any medication that has been prescribed for the child;
9.3any specialist medical appointments with any medical doctor, psychiatrist, psychologist, counsellor or therapist regarding the child;
9.4any social, school or religious functions which the child is to attend;
9.5the residential address of the Father;
9.6the telephone contact number of the Father;
9.7any other matter relevant to the welfare of the child.
That the Mother shall ensure the Father is kept informed as soon as is reasonably practicable of:
10.1any medical problems of illness suffered by the child, whilst in the care of the Mother;
10.2any medication that has been prescribed for the child;
10.3any specialist medical appointments with any medical doctor, psychiatrist, psychologist, counsellor or therapist regarding the child;
10.4any social, school or religious functions which the child is to attend;
10.5the residential address of the Mother;
10.6the telephone contact number of the Mother’s;
10.7any other matter relevant to the welfare of the child.
that in the event the parents cannot reach a joint decision about;
11.1a major long-term issue involving the child; or
11.2the interpretation of these Orders; or
11.3the enforcement of these Orders; which involve the children, each of the parents will do all things necessary to participate in Family Dispute Resolution with a person authorised under the Family Law Act.
That before an Application is made to a Court for a variation of these Orders to take account of the changing needs or circumstances of the child or of the parties, each of the parents is to take the following steps:
12.1the Father and the Mother shall each do all things necessary to attend Counselling or Mediation with an Organisation recognised under the Family Law Act;
12.2the Father and the Mother shall each participate in Family Dispute Resolution with a person authorised under the Family Law Act.
That for the purposes of changeover the parties meet at (omitted) McDonalds approximately halfway between the residence of each party;
In the alternative to Orders 1, 2 and 3 above in the event that an Order is made that the child live with the mother:
14.1AThe Mother shall cause the child to live at or within 30 kilometres of (omitted), New South Wales and be restrained by injunction from relocating the child’s residence to another place.
14.1That the Mother and the Father are to have equal shared parental responsibility for the child X. In relation to the care, welfare and development of a long-term nature involving the children to include, but not be limited to, issues about:
14.1.1the education of the child – both current and future;
14.1.2the religion of the child;
14.1.3the health of the child;
14.1.4any change to the child/’s living arrangements that may make it significantly more difficult for the child to spend time with any parent.
14.2That the child shall spend time with the Father as follows:
14.2.1Upon such occasions as the parents agree from time to time;
14.2.2Father's Day – from 5:00pm the day prior to Father's Day to 6:00pm on Father's Day in the event that the child is not otherwise spending time with the father;
14.2.3Upon the child’s birthday – from 12 Noon to 5:00pm;
14.2.4Christmas – from 5:00pm Christmas Eve to 3:00pm Christmas Day in odd numbered years and from 3:00pm Christmas Day to 6:00pm Boxing Day in even numbered years and alternating each year thereafter.
14.2.5From 5:00pm Thursday to 5:00pm Tuesday each second week;
14.2.6During school holiday periods for half of the April, July and September school holidays such halves to be agreed between the parties and in the absence of agreement for the second half of each of these school holiday periods;
14.2.7For half of the Christmas School holiday period by way of a week about arrangement between the parties and in the absence of agreement to commence with the father the first week of the school holiday period in odd numbered years and the second week in even numbered years.
That the child have the following parental communication:
15.1Telephone conversation with the father between the hours of 6:00pm and 6:30pm on Tuesdays and Thursdays each week when the father is not otherwise spending time with the child and to facilitate such telephone calls the mother will have the child available to speak with the father;
15.2Telephone conversation with the father as the child may request and the mother will facilitate the making of such telephone call;
15.3Reasonable telephone calls with the mother when the child is with the father;
15.4Reasonable telephone calls with the father when the child with the mother;
15.5Communication by way of letters, mail and gifts and the mother will hand over such communication to the child unopened.
The Mother shall forthwith sign all documents and do all things necessary to cause the Father to be registered as a parent of the child on the Birth Certificate for the child as certified by the New South Wales Registry of Births Deaths and Marriages.
In the event that Mother or Father refuses or neglects to execute any deed, instrument or document that may be considered necessary, the Registrar of the Court be appointed pursuant to section 106A of the Family Law Act 1975, to execute such deed, instrument or document in the name of such party and to do all acts and things necessary to give validity to the operation of the deed, instrument or document.
Respondent Mother’s proposed Minute of Order
The orders sought by the mother are:
1. That the child X born (omitted) 2012 live with the mother.
2. That the mother have sole parental responsibility for the child.
3. That the child not spend time with the father, or in the alternative to Order 3:
4. That the child spend time with the father for two hours each week supervised by Catholic Care, (omitted) at such times as nominated by Catholic Care.
5. Each parent is to comply with the following:
1. Appointments made by Catholic Care for supervised time;
2. Comply with all reasonable rules of Catholic Care;
3. Comply with all reasonable requests for directions by the staff of the Catholic Care.
6. The period of contact provided in these Orders may vary by reason of the closure of the Catholic Care services during school and public holiday periods and in such event, such contact shall occur at times when the service can be provided by the Catholic Care.
7. If Catholic Care during the currency of these Orders declines or is unable to continue to provide its services, then the child shall spend time with the father for two hours each week supervised by Ms J or such other person as the Court deems appropriate.
Independent Children’s Lawyer’s proposed Minute of Order
Previous Orders
All previous orders in these proceedings are hereby discharged
Parental Responsibility:
That the Father have sole parental responsibility for the child X born on (omitted) 2012.
Live With Orders:
3. That the child live with the Father.
Spend Time With Orders in relation to the Mother:
That until 3 months from the date of these Orders, the child not spend time with the Mother.
That commencing 3 months from the date of these Orders, the child spend time with the Mother as follows:-
5.1 Until the child commences school:
5.1.1for the second Saturday of every calendar month, from 11am until 4pm, to be supervised by the Father or his agent.
5.1.2the Mother shall ensure that no member of her family be present during the spend time period as set out in sub-para 5.1.1.
5.2 From the time that the child commences school:
5.2.1 `During school terms:
5.2.1.1 for the second Friday of every calendar month, from Friday afternoon from after school until the following Monday morning before school;
5.2.1.1.1 to be suspended on any weekend coinciding with Father’s Day.
5.2.1.2 from Friday afternoon from after school until the following Monday morning before school on the weekend coinciding with Mother’s Day if not consistent with weekend as set out in sub-para 5.2.1.
5.2.2for the birthday celebrations of: the child if it does not coincide with the period set out in sub-para 5.2.1:
5.2.2.1 from 9am until 5pm if it falls on a weekend;
5.2.2.2 from after school until 7.30pm if it falls on a weekday to take place within 10 kilometres from the child’s school. .
5.3 Commencing in the year that the child is in Year 1, during school holidays:
5.3.1for the first half of each school holidays in years ending in an even numbered year to commence on the last Friday school day of the immediate school term prior to that school holiday.
5.3.1.1 to be suspended for the period Christmas Day at 2.30pm until Boxing Day at 8.30pm.
5.3.2for the second half of each school holidays in years ending in an odd numbered year to conclude at the commencement date of the school term immediately after that school holiday.
5.3.3From Christmas Eve at 12 noon until Christmas Day at 2.30 pm in years ending in an even number.
5.3.4From Christmas Day at 2.30pm until Boxing Day at 8.30pm in years ending in an odd number.
Changeover venues:
The changeover venue shall be the child’s school if available, but if not available, the Mother shall collect the child from the Father’s home at the commencement of her time with the child; and the Father shall collect the child at the Mother’s home at the conclusion of the spend time period.
Non denigration orders:
The parents are restrained from denigrating the other in the presence of the child.
Notifications:
That the Father shall ensure that the Mother is kept informed by way of email as soon as it is reasonably practical of:
8.1Any medical problems or illnesses suffered by the child whilst in the grandparents or each parent’s care;
8.2Any medications that have been prescribed for the child;
8.3Any specialist medical appointments;
8.4Any significant social, school or religious functions which the child is to attend;
8.5The details of any sporting body(ies) that the child is involved in;
8.6Any other important matter relevant to the welfare of the child.
Information exchange and authorisations:
The Father is to keep the Mother informed of his residential address, contact telephone numbers and email address and is to inform her of any change to same within 7 days of such change occurring.
The Mother is to keep the Father informed of her residential address, contact telephone numbers and email address and are to inform them of any change to same within 7 days of such change occurring.
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