Welby and Raine

FAMILY COURT OF AUSTRALIA

WELBY & RAINE

[2020] FamCA 189

FAMILY LAW – CHILDREN – Best interests – With whom the child shall live and spend time – Parental responsibility – Where the child currently lives with the mother – Where the child has not seen the father since December 2017 – Where there are numerous allegations by the mother that the father has harmed the child – Where those allegations are unsubstantiated – Where the child is not at risk of unacceptable harm in the care of the father – Where the child’s fear towards, and negative view of the father is encouraged and allowed by the mother – Where the mother has not nurtured the emotional or psychological needs of the child and is unable to promote a healthy relationship between the child and the father – Where the child’s development would be impacted in a negative way if he continues to live with the mother and spend no time with the father – Where a distance of 500 kilometres between the parties’ residences makes weekend and block time with the child impracticable – Where the presumption of equal shared parental responsibility is rebutted – Ordered the father have sole parental responsibility and for the child to live with him – The mother is restrained from contacting or communicating with the child for a period of six months and following such period, for a further six months, the child is to spend limited supervised time with the mother – Thereafter, the child will spend time with the mother at the discretion of the father and as agreed between the parties.

Family Law Act 1975 (Cth) ss 60CC, 61DA, 68B

APPLICANT:

Ms Welby

RESPONDENT:

Mr Raine

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW

FILE NUMBER:

NCC

265

2013

DATE DELIVERED:

7 April 2020

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Newcastle

JUDGMENT OF:

Cleary J

HEARING DATE:

4 – 7 February 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Mueller

SOLICITOR FOR THE APPLICANT:

Single Law

COUNSEL FOR THE RESPONDENT:

Mr Duane

SOLICITOR FOR THE RESPONDENT:

Gianacas Argiris McDonald

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Mooney

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW

Orders

That all prior orders in relation to the child X born … 2010 (“X”) are discharged.

Residence

That X shall live with the father commencing Tuesday 7 April 2020.

Parental Responsibility

That the father have sole parental responsibility for X.
The father shall notify the mother in writing of the school in which X is enrolled.
The father shall notify the mother of any specialist medical treatment, serious accident or medical emergency involving X as soon as reasonably practicable.
Within 7 days of the date of these orders the father shall do all acts and things and execute all documents necessary to permit the mother to obtain at her own expense, if any, copies of specialist medical reports and school reports for X.

Time and Communication

For a period of six months from the date of these orders the mother is restrained, and an injunction pursuant to Section 68B of the Family Law Act 1975 (Cth) is granted, from telephoning, contacting or communicating with X and further, from causing or permitting third parties to do so on her behalf.
Following the period of injunction in Order 7 each of the parties shall take all reasonable steps to ensure that X spends time with the mother supervised in a contact centre or by a supervision service in the Canberra area for a period of not less than six months and for not less than two hours on each occasion being on one weekend day per calendar month.
The parties, or either of them, shall provide a copy of these orders to the supervisor/supervision service provider.
Thereafter, X shall spend time, if any, and communicate, if at all, with the mother as at the discretion of the father, at times and places agreed between the parties.

Information

The parties shall each keep the other advised in writing (which may include electronic writing) of their current residential address and contact details.

Provision of information to the Department of Communities and Justice

That a copy of the following documents be provided to the Secretary of the Department of Communities and Justice NSW [Noting that a registrar of this Court will forward those documents]:
(i)These orders and reasons for judgment;
(ii)Family Report of Ms D Family Consultant dated 21 May 2019.

Explanation of orders – Independent Children’s Lawyer (“ICL”)

That the ICL attend with the child X together with a family consultant today, for these orders to be explained to him and for any relevant questions he may have to be answered.
That the mother arrange as soon as practicable, but in any event within 28 days, for the child Y to attend, in person or electronically, on the ICL for these orders to be explained to her and for any relevant questions she may have to be answered.

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

IT IS NOTED that publication of this judgment by this Court under the pseudonym Welby & Raine has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 265 of 2013

Ms Welby

Applicant

And

Mr Raine

Respondent

REASONS FOR JUDGMENT

These were competing applications for parenting orders concerning two children Y, a girl aged 14 years, and X a boy aged nine years (the subject child) at date of trial.
The matter was heard in the Magellan Protocol. That is where allegations of sexual abuse of a child have been raised. Allegations of that type had been raised on behalf of Y.
The parties to the proceedings are the parents of the children.

Partial resolution

The parties resolved their dispute in relation to Y on the first day. Orders were made by consent for the mother to have sole parental responsibility and residence, and for time between the father and Y to be as agreed between the parties.[1]
[1] Final Orders dated 04/02/2020.

Introduction

The parties began living together in 2004. At that time the mother was a single parent with a child, Ms P then aged two years, now 18 years. Ms P became a full time member of the new household and called the father “Dad”.
The father had recently separated from his first wife (“Ms C”). There were two children of that marriage, Mr W then aged about three years and Z about 18 months, who lived with Ms C and spent time with the father in his household with the mother. Mr W is now 18 years and Z is 17 years.
In 2005 the parties married. Y was born later that year, X almost five years later in 2010.
The parties separated seven years ago, in January 2013, and have not reconciled.
In 2016 Y was diagnosed with, and had brain surgery for, an illness which has recurred and is ongoing. The fear and distress of both parents arising from the ill health of Y has had an impact on this litigation.
The child requires ongoing care as her brain does not register with the left side of her body, she fatigues rapidly and has impaired vision.
Y is also diagnosed with a medical condition which has the potential to leave her deaf by the age of 20. Treatment is ongoing.

The Parties

The Applicant Mother – Ms Welby

The mother is 48 years of age and is occupied as Y’s full-time carer. The mother lives in Suburb E in the F Area in New South Wales.
The mother’s household consists of herself, and the two subject children. Ms P, who turned 18 years on the day after the conclusion of this trial, was said to have moved to live independently 12 months prior. From the Bar Table the Court was told she had recently returned.
The mother apparently has had a partner for the past three years who lives in a northern suburb of Sydney. That person did not participate in family report interviews and was not a witness.

The Respondent Father – Mr Raine

The father is 51 years of age. He is employed by M Company as a technician based in G Town, Western Australia. The father is also a qualified tradesman. Presently he has taken 12 months leave from his employment.
For four years from January 2016 he worked two weeks on/two weeks off on a fly-in/fly-out basis.
From May 2017 until very recently the father has had Country N as his place of residence for the two “off weeks”.
The father now lives in L Town in New South Wales. It is where he grew up. On first returning to New South Wales he stayed with his parents. He has bought a property there, a block of three units and is living in one of them.
The father denies a current domestic relationship for himself.

The Trial

The trial was set down for three days commencing 4 February 2020.
Both parents were represented at trial by solicitor and counsel.
There was an Independent Children’s Lawyer (“ICL”) who was represented by counsel.
On the morning of the first day of trial there was an application by the mother for adjournment which was declined for the reasons separately given.[2]
[2] Orders and Reasons dated 4/02/2020.
The trial did not conclude within the allocated time but was fortuitously for the parties able to extend into a fourth consecutive day.
On 7 February 2020, the final day of trial, interim orders were made for two periods of weekend time for X with the father, pending delivery of judgment. The orders were consistent with the revised position of the mother.[3]
[3] Exhibit 12, Order 3(a).
Judgment was thereafter reserved.

The Applications

The Mother

By her Initiating Application filed 19 September 2018, the mother had sought sole parental responsibility and ongoing residence for both children with no time or communication with the father.
At the conclusion of oral evidence and before submissions, the position of the mother in relation to X, changed.
The mother proposed time for the child with the father on two weekends per school term, half of term holidays, two weeks at Christmas and other special times.

The Father

By his Amended Response filed 23 September 2019, the father sought final orders for both children.
The orders made by consent[4] for Y reflect that the father accepted the opinion of the family consultant, that at her age and given her problematic health Y should continue to live with the mother and spend time with the father in accordance with her wishes. The father acknowledged that the child was unlikely to wish to see him in the immediate future. Y suffers from anxiety about her father hurting her or taking her away from her mother.
[4] Final Orders dated 4/02/2020.
In relation to X, the father sought sole parental responsibility, residence and for the child to spend no time with the mother for two years and thereafter as agreed.

The Independent Children’s Lawyer

The ICL did not have a preliminary position. However in the Outline of Argument[5] counsel for the ICL, drawing on the Family Report, squarely raised the need for the Court to consider one or both of the children living with the father in this way:
·Y has been successfully completely aligned with her mother meaning that it would be near impossible to manage compliance with any orders for her to live with her father.[6]
·X presents as being on the way to being aligned with his mother but is not yet completely aligned with her.[7]
[5] Exhibit 1, page 2.
[6] Magellan Family Report dated 21/05/2019 para 243.
[7] Magellan Family Report dated 21/05/2019 para 244.
By commencement of submissions the ICL had a settled view.[8]
[8] Exhibit 13.
The proposal of the ICL was:
a)For the father to have sole parental responsibility and for X to live with the father;
b)For there to be a six month period of no time and communication between the mother and X;
c)For a period of 12 months thereafter professionally supervised time in Canberra.

The issues

Should the child move to live with his father in L Town?

I have concluded that despite having always lived with his mother, the distance involved, the change of school, separation from his mother and sister, and the child’s own stated views, X should move to live with his father.

If so, are the proposals of the father for time and communication with the mother and his sister suitable?

In effect the orders provide for a period of respite (six months) for the child to deal with the internal conflict he must feel resulting from the parental conflict he has been exposed to for so long. Thereafter a period of supervised time with his mother, supervised to ensure that no unsettling comments are made to X about the father to the child, or anxious statements by the mother about his own welfare. Thereafter the father would have the discretion to facilitate time if he considered there would be a benefit to the child.
The orders may cause a disorienting shock to the child from being disrupted in this way. That harm is balanced against a life growing up in a state of fear and protective anger about the conduct of his father towards himself and his sisters based entirely on the unsubstantiated opinions of his mother.
It will be important for X to maintain contact with his sister Y but that too will be at the discretion of the father and the willingness of the mother. I accept the evidence of the paternal grandmother that she would assist in that matter in every way she could.

Should the child remain living with the mother?

I have concluded that the mother loves X and has cared well for him. His positive school reports reflect well on her support of his education. Even so, the child should move to live with his father.
Whether or not they are sincerely held, the expressed beliefs of the mother about the allegedly abusive and brutal conduct of the father towards both children have created feelings of fear of, and hostility towards, the father in the mother’s household.
The mother loves the children dearly but she is so fiercely protective that she has become overprotective and assumes that her position about the father is and must be the same for the children.

If so, are the proposals for time and communication with the father, suitable and practicable?

The proposal of the mother at the conclusion of the trial, for X to spend time with the father, may represent any or all of several possibilities. It may be an acknowledgment that neither of the children were at risk of harm from the father, or that X was not at risk in his father’s care despite the ongoing expressed belief of the mother that his sister and older half-sister, Ms P, had both been sexually assaulted by the father.
The proposal may have been a response to legal advice or to a sense of pressure created by the evidence of the family consultant and the ultimate position of the ICL which did not support the case of the mother.
I cannot come to any conclusion about that.
However I can conclude that the orders proposed are impracticable unless the father returned from L Town to live in the H Region. Weekends and special times such as Christmas, involving 1000 kilometres of return travel, are entirely impracticable. Even one week of each term holiday would likely feel onerous for the child in respect of the travel involved whether by car, train or partly by air. A one way trip would be five-six hours by car, without stops.
In the past the mother has wanted the father to stay right away from her home and he has done so. If he remains living in L Town the orders would fail through impracticability. If he returns to the H Region the orders are likely to fail as they have before. There may well be a return to police involvement and protective orders for the mother and children.

Is the mother likely to comply with any orders made?

The mother has not been compliant with orders in the past.
In 2014 the mother, who was the second respondent mother in those proceedings, consented to final parenting orders[9] (“the 2014 orders”) for time between the two children and the father; with the orders expressly noting the allegations of harm raised about the mother’s child Ms P.
Pursuant to Rule 10.15A of the Family Law Rules, the first respondent father, second respondent mother and the Independent Children’s Lawyer mutually submit that allegations of child sexual abuse were made concerning a child of the second respondent mother and those allegations are addressed by the second respondent’s satisfaction that there will be no future interaction between that child and the father. It is not asserted that the two children of the parties are at risk of sexual abuse.
[9] Final Orders dated 7/02/2014.
Within two months of the 2014 orders a report to the Department of Family and Community Services (“FACS”) (now the Department of Communities and Justice) was made raising the risk of harm to the children of having unsupervised time with the father.
By August 2014 the mother had ceased making the children available for time with the father. She said she did so on the advice of counsellors.[10]
[10] Exhibit 10.
It is easy to accept that a counsellor who was told by a parent that children had been physically and sexually abused by the other parent, might have given such advice. Even if that counsellor had been aware of Court orders having been made with the consent of the mother, and aware of the consequences likely to flow on to the mother for failure to comply with those orders, such advice might still have been given.
Nevertheless, it was the decision of the mother, who certainly did know that information, to breach Court orders.
Consequences did flow. In November 2014 the mother was found by this Court to have contravened orders without reasonable excuse. Extra time was ordered and the mother formally advised the Court that she would resume compliance on the next weekend, which she did.
Subsequently after events in 2016 the mother again ceased to make the children available. Time ceased altogether for X in December 2017.
Given that history, the past conduct of the mother is a more reliable indicator of future non-compliance than assurances in oral evidence that the mother would comply in future.

History of Relevant Events

Separation

On 8 January 2013 the parties separated when the mother moved out of the family home with the children.
The mother and her three children, Ms P aged 11, Y seven and X almost two years moved temporarily into the home of Ms C, the former wife of the father, and her two children by the father, Mr W then aged 11 and Z 10.

Risk of Significant Harm (“ROSH”) Reports

On 14 January 2013, six days after separation of the parties, the first of many recorded reports of risk of harm was made to FACS. It is not explicit who made the reports. It is not clear in every report which of the five children in the combined household are being referred to. It is clear that it was only those five children being reported.
The first report included:
·Allegations of sexual abuse by the father against Ms P [referred to JIRT]; not substantiated.
·Allegations of verbal and physical abuse by the father of all children;
·Allegations of domestic violence by the father including verbal and physical abuse and financial control.
Between 14 and 18 January 2013 at least three duplicate reports of abuse by the father of the children were made.
There was a report that the mother had ceased contact between the father and the children and that an Apprehended Violence Order (“AVO”) was in place.
On 29 January 2013 three reports were made which alleged:
·Psychological risk of harm, namely that the children were “displaying persistent fear and worry regarding the prospect of contact with the father.”;
·Physical abuse by the father of Mr W, stating that “the father had previously picked up his son Mr W (11 years) by the neck and threw him across the room and pushed him into a glass sliding door causing bruising.”;
·That the father consumed alcohol daily and “becomes aggressive and violent when under the influence of alcohol.”

Application to State Court for Apprehended Domestic Violence Order

On 7 February 2013 an Apprehended Domestic Violence Order (“ADVO”) was made for 12 months to protect the mother and the subject children from the father. The order was not in evidence but was annexed to the first affidavit of the mother filed in 2013.[11]
[11] Affidavit of the mother filed 11/02/2013, Annexure B.

Application to the Family Court of Australia by the father’s first wife – 11 February 2013

On 11 February 2013, Ms C filed an application in this Court seeking orders in relation to the two children [Mr W and Z] of her former marriage to the father.
This application came ten years after Ms C’s separation from the father. It suggests that Ms C was either sympathetic to the mother and the reasons for her separation from the father or alarmed by the allegations raised by the mother about the father.

Mother becomes a party to Ms C’s application

On 5 April 2013 the mother joined Ms C’s proceedings as a party and sought orders for the two subject children. The mother sought sole parental responsibility for herself, the children to live with her and to spend no time with the father.

CAPIA – April 2013

In April 2013 the parties attended for a Children and Parents Issues Assessment (“CAPIA”); the mother, the father’s first wife Ms C and all five children.
Both women and the older children raised very serious allegations of abusive misconduct by the father. For instance, excessive use of alcohol and marijuana, excessive discipline of the children and physical assaults on the mother, the children and family pets.[12]
[12] Exhibit 5, pages 2–5.
The family consultant, unsurprisingly concerned, recommended that “the father not approach or communicate with the mothers or with the children until further information is obtained and a comprehensive risk assessment is prepared in relation to the family violence allegations”.[13]
[13] Exhibit 5, page 15.

Single Expert Report - October 2013

There was a Single Expert Report prepared in October 2013 by a consultant child and adult psychiatrist.[14]
[14] Exhibit 4.
The subject children were assessed to have “a fairly anxious attachment to their mother.” Y was too anxious to be interviewed. X was initially willing to come with the single expert to be observed then “became distressed when Y was tearful.”
The father was not assessed to represent a risk of harm.

Final Orders by Consent – 7 February 2014

On 7 February 2014 final orders (“the 2014 orders”) were made by consent by this Court in relation to all four of the father’s children by his two partners. For the two subject children the orders provided for equal shared parental responsibility, the children to live with the mother and spend defined time with the father.[15]
[15] Final Orders dated 7/02/2014, Order 3.
In August 2014 the mother ceased contact between the father and the children.
The father filed two contravention applications.

Contraventions found - November 2014

On 21 November 2014 this Court found that the mother had contravened the 2014 orders on three occasions and make up time was ordered.
In March 2015 allegations were made to FACS raised by the mother on behalf of Y then aged nine years. The allegation was that the father had forced Y to share his bed and had laid on top of her every night of the two weeks she had stayed with him. The child was unwilling to comply with an interview with JIRT unless her mother came in with her. There was no interview.
In June 2015 the father was made redundant. He then found new employment in Western Australia. The father moved away for work and could not comply with the 2014 orders. The restrictions imposed by the father’s roster were a source of understandable conflict. The mother wanted predictability for her own activities, the father wanted to spend as much time as possible with the children.
The comments made by the mother suggest that the children were conduits for complaint between the parents and were feeling the strain.[16]
[16] Affidavit of the mother filed 17/01/2020, para 48.
On 1 June 2016 the mother sent the father an email[17] which would fit the description of effective respectful parental communication. She refers to the subject children in an ironic affectionate and amusing way as “the beloveds”. The third and fourth paragraphs are as follows:
I know you love both Y and X and want what’s best for them as do I. They really need you in their lives as their Dad and role model. I am very happy to hear you are also going to Ms K for sessions with Y. I feel that Y needs to learn to communicate effectively with you and build a better relationship. Contrary to what you may believe, I encouraged Y and X to come to you and have found it an uphill battle that was disheartening and stressful.
The rabbit incident, I know was you trying to do the right thing and also win Y over. Your heart was in the right place Mr Raine and I know you had the best intentions. Please can you ask or discuss ever bringing pets home to keep at my home as I am really unable to accommodate any further pets. It wasn’t nice having to say no and it also distressed me to think once again it would create conflict between us as parents and also confusing emotions with Y. X really looks forward to seeing you and is very settled coming to you.
[17] Affidavit of the mother filed 17/01/2020, Annexure B.

Y’s Illness and Surgery

In 2016 the father had felt concerned about the change in Y’s gait and the loss of strength in her left leg. The mother reported Y was suffering nausea and dizziness at times.
Each parent alleges that the other one was dismissive of his/her observations. In retrospect probably both were right.
In August 2016 Y fractured her left arm in a bike accident. The accident happened at the father’s home. He took her to the hospital for treatment. The father sets out a touching account of the child “asking that I stay with her every moment in hospital” which he did. He described her as “brave and calm”, chatty and making light of the situation.[18] He felt proud of her and said so.
[18] Affidavit of the father filed 5/12/2019, par 114.
The father returned both children to the mother at the end of that weekend. Y sent texts to her father thanking him for looking after her, and loving and affectionate messages to him and for her grandmother. Similar messages including a text for Father’s Day followed.
In early October 2016 the mother and Y attended Q Hospital to have the cast removed. Y had by then developed a dropped left foot and a deformed left hand.
On 16 October 2016 an emergency MRI was taken of Y’s brain which revealed a tumour, a meningioma. She was admitted to hospital.
The mother said she talked to Y about telling her father where she was and what was happening and that the child replied “I don’t want Dad here”. There was little point in having given Y a decision to make. The mother told the father, as she was obliged to by orders, although she may well have done so in any event.
It seems unlikely that a child who had been so comforted by her father’s presence in hospital in August would reject him entirely in October and to use the mother’s words “try to run away from the hospital” when she knew he had been told of her illness. If that happened, which seems less likely, it may be that Y dreaded the prospect of her parents together at a time when she must have felt frightened and overwhelmed by such a diagnosis aged 11 years.
The reaction described by the mother is also entirely inconsistent with Y contacting her father by Instagram telling him about something in her brain which had to be cut out[19] and that she was frightened.
[19] Affidavit of the father filed 5/12/2019, par 122.
The father flew straight back from G Town to see Y.
On 17 October 2016 the mother took a course of action which she may have seen as protective. There are other possible explanations. Whatever her motive was, her words alerted hospital staff to expect trouble from the father.[20]
Y’s mother approached nurses’ station to inform of a likely incidence today that may cause distress to Y. Y’s mother stated that she had to inform Y’s father of Y’s diagnosis. Y’s father will be visiting today at about 10:30 am and that Y’s father has expressed wanting to stay at the bedside overnight. Y’s mother stated that Y’s father do(sic) not live with them, but had visiting rights to Y and that “Y hates his(sic) father”.
[20] Exhibit 6, page 78.
There followed a series of measures to be put in place by the hospital; keeping a line of sight between a nurse and Y and keeping curtains open.
The mother accuses the father of dominating discussions with doctors, of taking the paperwork before she could read it.
The father on 17 October 2016 signed the consent for surgery for Y, he says because the mother could not bear to do it. The view of the attendant social worker was that:
Y’s anxiety may be partly because Mum allowed father to sign forms etc in order to keep the peace.
It seems unlikely that the hospital would have declined to allow both parents to authorise the surgery. It is probable that the mother did not wish to sign but did not make it clear to Y that both parents agreed that the surgery must take place.
On 18 October 2016 Y had surgery. She now has an acquired brain injury.
The hospital notes for 19 October 2016[21] include this statement:
Discussion with [2 named persons] re mother’s concerns re father visiting more than expected and impact on Y who is highly anxious around him, also mother’s concerns that father may have abused Y and she may not be disclosing. [Court’s emphasis]
[21] Exhibit 6, pages 29-31.
The most positive interpretation of those words is that the mother was extremely anxious about Y’s illness and had developed an anxious irrational fear that Y had been abused by her father, and had not yet told her.
A more sinister interpretation is that the mother was setting up the groundwork for allegations of sexual abuse to be raised with a view to clearing the father out of her life and the children’s lives.
What is clear is that by 19 October 2016 Y had not, to her mother’s knowledge, made any allegation of abuse by her father, sexual or otherwise.
By 24 October 2016 reports had been received by FACS in relation to allegation of sexual assault of Y by the father of inappropriate touching in hospital. The matter was referred to JIRT.
After Y came home from hospital the father did not see Y at all. He saw X on two Wednesdays and one weekend per month during his two weeks out of four on the H Region.
On 15 November 2016 the mother took Y in for an interview. The child raised allegations of being inappropriately touched in her hospital bed and also on past occasions.
The allegations were explored by JIRT and not substantiated. However it was identified that the child had a genuine fear and negative view of the father in alliance with the mother.[22]
[22] Magellan Report dated 26/02/2019, page 8.
In February 2017, in a letter full of bitter accusation, the mother bluntly told the father “Y does not wish to have any contact with you and I have been advised to support her request”.[23]
[23] Affidavit of the mother filed 17/01/2020, Annexure F.(Page58)
The relationship between the parents had disintegrated and has not been restored.
In May 2017 the father moved to Country N. For the purposes of transfers for his employment he identified Country N as his home residence for the two weeks off in his four week roster.
The mother did not facilitate the father’s telephone contact with the children during this time.
In November 2017 the mother arranged for Y to see a Victims Services counsellor due to further allegations being made.
Ever increasingly the reports by Y to her counsellor were of violent cruel sexual assaults. Y is reported to have said that her father tried to get her to touch his genitals but she managed to get away by kicking him in the crotch.
Such a story is unbelievable given the age of the child and the difference in strength. There were accounts of forced sexual intercourse, of the father dancing round naked in her bedroom, holding his penis asking her to touch it.
Mandatory reports were made by the counsellor.
In December 2017 the mother ceased all contact. The father has not spent time with the children since, although he tried to see X for Christmas that year. In my assessment, the father did not lose interest in the children but he did give up on the possibility of seeing them after that time.

Application to the Family Court of Australia

On 19 September 2018 the mother initiated proceedings in this Court seeking sole parental responsibility and for the children to spend no time with the father.
Along with her application, the mother filed a Notice of Risk. The notice alleged that the father sexually abused Y and that X was present on an occasion when Y was so abused and therefore both children were at an unacceptable risk of harm in the care of the father.
On 24 October 2018 an Application for substituted service on the father was granted. A notation to that order was that the solicitor for the mother informed the Court that “there is an open investigation being conducted by JIRT in relation to the allegations contained in the mother’s documents”.
On 23 January 2019 the proceedings were allocated to the Magellan Protocol.
On 22 February 2019 the father filed a response proposing:
·Equal shared parental responsibility;
·Y to spend time with the father in accordance with her wishes;
·X to spend time in accordance with the 2014 orders or in holiday periods if the father lived more than 100 kilometres away.
On 26 February 2019 the Department of Communities and Justice (“DCJ”) (formerly FACS) declined to intervene in these proceedings.
By 23 September 2019 the father had committed himself to an application for X to live with him.

Magellan Family Report by Family Consultant

On 21 May 2019 the parties and the children attended upon the family consultant for interview and observation.
The family consultant reported that the material read by her does not support that the children are at risk of sexual harm in the care of the father. She expressed the opinion that the mother strategically recruited and aligned professionals to assist her case. In the view of the family consultant the mother did so by reporting her expressed fears to professionals who accepted the children’s disclosures as truth without considering alternative reasons as to why the children may be reporting the information.
It is reported that “independent material strongly suggests that the mother has utilised the parent/child relational dynamic to nurture dependency and enmeshment between her and the children and between the children themselves to place loyalty demands on the children and influence, coerce and coach the children to make allegations against the father. This analysis is supported by the DCJ”.
After the release of the Family Report the father took some time to reconsider his position before the Court. There was a decision to be made as to whether the father would step out of the children’s lives as the mother preferred, or pressed for one or both of the children to live with him.
On 2 September 2019, trial dates were allocated.
On 23 September 2019 the father filed an Amended Response proposing that X live with him.
In October 2019 the father returned to live in New South Wales whilst continuing to work in Western Australia.
On 17 January 2020 the mother filed her affidavit, six weeks out of time. In that affidavit she refers to having been told in December 2019 by a named police officer that the investigation into the alleged abuse of her elder daughter Ms P was ongoing. There was said to have been a further similar conversation on the day before the filing of the affidavit.
It is apparent that the mother was making a case for deferring this trial on the basis that allegations, none of which were new to the DCJ were still, or again, being investigated.
It is difficult not to see this attempt at deferral of the trial as strategic by the mother. Almost six years prior, when the parties agreed on parenting arrangements the Court had noted that “it was not asserted that the (subject) children were at risk of sexual abuse” despite allegations raised by the mother regarding Ms P.
Nothing had changed since then. Further, the opportunity had arrived for testing of allegations in a civil trial. The logical interpretation is that the mother wished to perpetuate her own non-compliance with Court orders by deferring the trial.

Evidence

The documents relied on in respect of the application were as follows:
The Applicant Mother - Ms Welby
(a)Initiating Application filed 19/09/2018;
(b)Affidavit of mother filed 17/01/2020;
The Respondent Father - Mr Raine
(c)Amended Response filed 23/09/2019;
(d)Affidavit of father filed 5/12/2019;
(e)Affidavit of Ms B (paternal grandmother) filed 5/12/2019;
Reports
(f)(Magellan) Family Report by Ms D dated 21/05/2019;
(g)Magellan Report dated 26/02/2019.

Oral Evidence

The Mother

Cross-examination of the mother, prompted information about a childhood marred by sexual abuse of her as a young girl; by “someone outside the family and a doctor and young males in a children’s hospital.”
If that is the case it is unsurprising that the mother would be attuned to the possibility of sexual abuse of her own children.
Whatever the cause of it, in my impression the mother reacts to threats of harm to herself and to her children with all means available to her, at times in a disproportionate way. She relies on and uses the system to generate evidence of what she believes to be true. As a result the mother does not trust the outcome of the work of government agencies such as JIRT if it does not accord with her own view of what has happened.
To enlist the support and protection of authorities she provides some information and follows advice. On the face of it this is appropriate protective information. However the information provided is often selective.
For instance, prior to separation the mother worked night shifts and the father was at home with the children. In that context some or all of the children slept in the father’s bed.
When the mother separated from the father in 2013 she gave a social worker at a hospital information about events at home including “Mr Raine [the father] would make her [Ms P] sleep in bed with him and hold her close to his body”. The social worker contacted FACS who advised the mother to report to police. The mother made a statement to police. An AVO was applied for and the father, present at Court, did not oppose the order being made.
Without testing of any information provided, the father was excluded from the family home and the lives of all the five children who were full time and part time members of the household.
It must be the case that despite some basis for complaint about the quality of the relationship, for instance the father’s use of alcohol, the mother trusted the father to care for five children aged between two and 12 years overnight while she was at work.
When she chose to leave, the mother chose to accentuate the negative and make no reference to the positive (i.e. her trust in the father).
At times since, the mother has chosen to accentuate the positive, even as recently as 2016, acknowledging to the father how much the children needed him in their life.[24]
[24] Affidavit of the mother filed 16/01/2020, Annexure B.
During the course of this trial the mother moved from complete opposition to the children spending time with the father towards weekend and holiday time for X.

The Father

My impression of the father is that he has been ambivalent, not about the children themselves, whom he clearly loves, but about his approach to the mother.
Post-separation the father was restricted by an AVO from spending time with the children.
By her first application the mother proposed on a final basis “time as agreed” for the father with the children, but interim orders proposed were for no time and a restraint on approaching the children.

The father followed the process. The report of a single expert in August 2013 was a thorough and detailed assessment of risk.
The single expert did not conclude that the children were at risk of harm by the father.[25] He concluded that the main source of allegations regarding the father was the mother. Significantly he also concluded that Ms C’s allegations about the father were “triggered by discussions with Ms B [the mother]”.[26]
[25] Exhibit 4, page 69.
[26] Exhibit 4, page 62.
The Single Expert Report was released in October 2013.
In February 2014 all parties, each represented by counsel reached an agreement which gave rise to the 2014 Orders.
The mother soon after failed to comply with the orders. The father successfully relied on court process, a Contravention Application, to enforce compliance. Time recommenced.
Subsequent to Y’s illness and surgery in late 2016 the father distanced himself from the children believing that the mother had a lot to cope with and that the children would do better without parental conflict.
He came to understand that the mother’s antipathy to him grew rather than diminished.
After the May 2019 Family Report the father understood that Y, far from being assisted by his staying away, had rejected him and that X was following the same path.

The Paternal Grandmother - Ms B

The paternal grandmother is a retired professional aged 78 years. She gave evidence in a straightforward open way.
She went to the hospital to see Y after her surgery in 2016. I accept that in the following weeks she rang both the mother and Y many times but the telephones were not answered.
Ms B was challenged with the proposition that she had told Y that if she did not spend time with her father she would not be able to see her grandmother.
The tone of the question suggested pressure had been put on Y by the paternal grandmother to spend time with her father.
Although she was not able to remember saying that, the paternal grandmother confirmed that it was her belief that if Y was not with her father she would not see her.
Her response made it clear that the paternal grandmother felt that she was no longer welcomed by the mother so that the only time she would see the subject children was when they were with their father.
The paternal grandmother remains in communication with the two elder children of the father, Z and Mr W. They speak on the telephone and visit on occasions.
The paternal grandmother described herself as more than ready to assist with changeovers.
The commitment of the paternal grandmother to her grandchildren was obvious.

The Law

The objects of the Family Law Act 1975 (Cth) (“the Act”) in relation to parenting orders are to ensure that:
a)Children have the benefit of both of their parents having a meaningful involvement in their lives to the maximum extent consistent with their best interests;
b)Children are protected from physical and psychological harm;
c)Children receive adequate and proper parenting to help them achieve their full potential; and
d)Parents fulfil their duties and meet their responsibilities concerning the care welfare and development of their children.
These are applications for parenting orders pursuant to s 64B(2) of the Act. In deciding whether to make a particular parenting order in relation to a child, a court must have regard to the best interests of the child as the paramount consideration. The way a court determines what is in a child’s best interests is by considering the matters set out in s 60CC(2) and (3) of the Act.
When making a parenting order the court must apply a presumption that it is in the best interests of the subject child, for the parents of that child to have equal shared parental responsibility.
The presumption does not apply if there are reasonable grounds to believe that a parent (or a person who lives with a parent of a child) has engaged in abuse of the child or family violence.
The presumption may be rebutted by evidence that equal sharing of parental responsibility would not be in the best interests of the child in question.
I have contemplated the issues of parental responsibility, residence, time to be spent and communication between child and parent as well as any other specific issues.
I have considered the mandatory factors and conclude that the following matters are relevant to the best interests of this child.

Parental Responsibility

Each parent seeks sole parental responsibility for X from the stance of being the residential parent.
The presumption of equal shared parental responsibility is rebutted by the evidence that each parent has no trust and confidence in the other to meet the emotional and psychological needs of the child.

Primary Considerations

The benefit to the child of having a meaningful relationship with both of the child’s parents

It would be of great assistance to both children growing up that they have a meaningful relationship with both their parents. That future seems unlikely.
The mother is now, by her changed proposal, apparently acknowledging that benefit for X, but the Court has very little confidence that emotional support by the mother for the restoration and development of the relationship between X, his father and the extended paternal family would be sustained in the future.
The following opinion of the family consultant is one borne out by the evidence in this case:
The children’s experience of the parental separation has been of; high parental conflict, an inability to retain a relationship with both parents and psychological harm perpetrated by the mother.[27]
[27] Magellan Family Report dated 21/05/2019, para 233.
The family consultant went on to muse over whether the children had been exposed to family violence, parental drug and alcohol abuse and physical harm in the as alleged by the mother.
The family consultant had not been required to read or view material from the prior proceedings including the report of the single expert. I am independently satisfied that the children were not exposed to risk of unacceptable harm in the household prior to separation.
Further, I am satisfied that X has retained a relationship which means a great deal to him with his father.
In May 2019 when interviews for the Family Report were undertaken, the family consultant made an observation of X in the waiting room. He was sitting on a couch “quietly waiting for his father to arrive”. He had not seen him for 18 months. His sisters were each lying on a couch. Ms P was asleep. Y was “disengaged”.
When the father and Mr W entered the room, X “smiled a big smile but quickly covered it with the iPad he was holding.”[28]
[28] Magellan Family Report dated 21/05/2019, para 225.
The father spoke to X and asked how he had been. X responded with what the family consultant described as “minor disrespectful language” as follows:
Father:           I love you and miss you X
X:                  I can’t say the same about you
Father:           Mr W is here and loves you
X:                  I love him too but I am not sure about him
The father remained calm and did not reprimand him. The family consultant did remind him about “the rule about being respectful”, after which his attitude was “generally appropriate”.
Of significance is the further observation:
At no time did X present as fearful or concerned about the father’s presence. Indeed he appeared to be very confident in speaking negatively to the father, smiling as he made disrespectful comments which suggested that he did not fear any potential ramification from the father at all.[29]
[29] Magellan Family Report dated 21/05/2019, para 226.
The evidence is that X is an intelligent forthright boy. One possible interpretation of his behaviour, which seems likely, is that X expected his father to understand his dilemma. On one hand, what his mother and sisters expected from him and on the other, his concealed pleasure at the reunion with his father and older brother.
X must have known that his sisters would be adverse in their comments about the father. Y was at one point “sobbing, clinging to her mother and shaking” which the mother explained as Y being upset because X would be observed with the father.[30]
[30] Magellan Family Report dated 21/05/2019, para 201
I consider that the father did in fact understand.

The need to protect the child from physical or psychological harm or from being subjected or exposed to abuse or family violence

The children have been physically well cared for by the mother but not so well emotionally and psychologically.
The Magellan Report noted that:
While risk of psychological harm was substantiated for Y in the care of Ms Welby (the mother) it was assessed by JIRT officers that Y was safe in the care of Ms Welby and Y was receiving psychological support. Y expressed fear of Mr Raine (the father) and stated to the JIRT case worker that she did not wish to have contact with him.[31]
[31] Magellan Report dated 26/02/2019, page 10.
Y is an extremely vulnerable young person. She continues to be unwell but is not fully aware of her prognosis. Her mother has chosen to protect her from that information.
She depends on her mother in every way including for her education and access to medical treatment. She is an adolescent who presently is not on the path to increasing independence. She has an acquired brain injury.
Y is fearful of her father; fearful that he might come to the house and take her and her brother away, and that he has or might have been a monstrous abuser of herself.
Long before her illness, in April 2013, Y was so anxious that she could not be interviewed for the Single Expert Report.[32] Y has not thrived emotionally in her mother’s care although there is nothing that her mother would not do for her.
[32] Exhibit 4.
The mother does not reassure Y other than of her intention to do her best to keep Y safe from her father.

Additional Considerations

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

As a just nine year old, X came to the interviews with the family consultant primed to complain about the father.
I reach that conclusion from the description of his conduct as follows:
After the role of the family consultant was explained to X, without being questioned, he launched into a fast paced and lengthy narrative of concerns about the father. A number of attempts were made to interrupt him, so that the writer could catch up with writing his statements, however this was unsuccessful and his narrative was not able to be interrupted.
The language used by X was often adult in nature and there was a strong sense that the information had been rehearsed. X’s demeanour was not consistent with the distressing and or concerning information he was reporting.[33]
[33] Magellan Family Report dated 21/05/2019, para 195.
The family consultant was challenged about this assessment in cross-examination on the basis that the child was above average intellectually and unusually articulate for his age.
In response the family consultant was steadfast in her view. She described his presentation as “coming in prepared to make a speech” and “it wasn’t just the language it was the presentation – provided as a speech”.
The proposition was put that his being a confident articulate child might explain why X did not show distress about the content of his complaints (such as being hit on the head and ‘dreaming of dad having (sic) a gun to me’). The family consultant was resolute “it was an incredibly unusual presentation.”
I accept the assessment of the child’s behaviour. I do so both because of the expertise of the family consultant in assessing children and also because this was not the first set of interviews for these parties.
There had been a CAPIA in April 2013.[34] There was a Single Expert Report in October 2013.
[34] Exhibit 5.
The mother was in an informed position about the process. The most likely explanation, although I cannot be certain of it, is that the mother encouraged and assisted X to prepare his monologue.

The nature of the relationship of the child with each of their parents and other persons (including any grandparent or other relative of the child)

X has his closest, most dependent, relationship with his mother and a loving protective relationship with his sister, Y.
X and Y express anxious fears about the father. Y’s anxiety extends to fear on behalf of X that he will be hurt by the father.
X has a damaged but intact relationship with his father and two older paternal siblings, Mr W and Z.
Ms P, nine years older than X and with a different father, thought X should “not really” see his Dad when speaking to the family consultant.
Mr W expressed sympathy for X being caught up in family conflict “I think I was in the exact same situation as him at one stage”.[35]

The extent to which each of the child’s parents has taken or failed to take the opportunity to participate in making decisions, to spend time with the child and to communicate with the child

[35] Magellan Family Report dated 21/05/2019, para 220.

The father has failed to spend time with the children not through lack of interest.
He pressed for compliance when the mother breached the 2014 orders.
He stepped back deliberately after October 2016, mainly to comply with Y’s expressed wishes. He tried to see X.

The extent to which each of the child’s parents has fulfilled or failed to fulfil the parent’s obligations to maintain the child

The father has always paid child support as assessed, which, given his high income, has provided for their needs quite adequately. The mother has not acknowledged to the children in any way that the father helps to provide for them. The mother said she “didn’t think it was appropriate” to tell the children that the father was helping with money.

The likely effect of any changes in the child’s circumstances including the likely effect on the child of any separation from either of his or her parents, or any other child or other person

X will be disrupted by removal from the household of the mother. He will miss her daily presence and care. He will also miss his sister, whom he has become increasingly protective and concerned since her illness.
This will be hard for him as the father acknowledged.
There is likely to be a rapid improvement in the relationship between X and his father, his two older paternal siblings, and the wider paternal family in L Town, especially his grandmother.
He will start at another school with the challenge and possibility of making new friends there.
Oddly at a time when the whole of Australia is disrupted by the restrictions arising from a pandemic, X may benefit from an extended period of time with his father in the community which will become his home.
Most importantly I am satisfied that the father will, after the order for supervised time expires, promote X’s relationship with the mother and Y if it is possible to do so. The father put forward in the witness box his thought of suggesting to X that he would be helping the family by living with Dad so Mum would be able to have more time with Y (while she is sick).
The family consultant described that idea as creative. She stressed that it was very important for X to be given an explanation for what has happened, since separation, to dispel any idea that his father did not want him.

The practical difficulty and expense of a child spending time with and communicating with a parent

The mother lives in the H Region of New South Wales, the father in L Town. By the most direct route, using tollways, the distance is 500 kilometres, a trip of approximately five-six hours.
Cheaper and more circuitous routes would take seven-eight hours of driving.
Whichever parent the child lived with, weekend time would be impracticable. Even a week of school holidays would be significantly reduced by travel for the child, whichever adult did most of the driving.
One parent could do all of the travelling and spend time with the child in the local area of the resident parent but that would soon become an artificial exercise for the child, staying in paid accommodation, not being at home .
I accept that the return of the father to living on the East Coast of Australia and the purchase by him of a home in L Town was designed to support his application for residence of one or both children.
The father grew up in L Town himself and many members of the paternal family, including the father’s parents and brother, live and work there. His brother is a teacher in the local school.
I accept that the paternal grandmother would be as she said in her oral evidence “more than willing” to assist in changeovers for X. She would happily drive to Canberra for that purpose.
The mother in her revised application on the last day of trial, must have known when she proposed two weekends per term and half school holidays that the journey involved would be untenable.

The capacity of the child’s parents and any other person to provide for the needs of the child, including emotional and intellectual needs

X is a bright child achieving well at school. The mother is able to meet most of his needs.
She is unable to meet his need for healthy relationships with the father and all members of his family.
The mother has been unable to reassure X, or Y, that although the father has his faults, he loves them and has always wanted to be part of their lives. She was unable to dispel their fears that the father would come to the house and hurt them. The mother held a positive view, or did in 2014, when she entered into orders by consent and in 2016 when she expressed it to the father. Now the mother allows the children to be fearful and rejecting and, in X’s case, dismissive of the father.
The family consultant was asked what the future would look like for X if nothing changed. Her assessment was as follows:
·He won’t have a relationship with his father and siblings;
·Likely to view his father as dangerous, that he has been harmed by his father;
·His ability to individuate will be affected;
·He may resent his mother for severing the relationship with his father;
·He may exit his mother’s house early;
·He may have an early entry into using drugs and alcohol;
·He may develop anti-social behaviour.
The father has never been the children’s full-time carer but he was involved in their day to day care until separation. He did spend regular time with them over most of the period of 2014-2016. Importantly, he understands the emotional needs of the children to enjoy relationships with the mother and maternal family and friends as well as with himself and his family. This emotional freedom is critical to healthy development.

The maturity, sex, lifestyle and background of the child and either of their parents and any other characteristics of the child that the court thinks are relevant

X is almost 10 years. He is an indigenous child through the maternal line. X is an intelligent, academically successful boy. He is the youngest of a mixed sibling group of five. He was formally especially close to his older brother. He has always lived in the same household as his sister Y.

If the child is an Aboriginal child or a Torres Strait Islander child

X has Aboriginal heritage through his maternal family. The maternal grandmother is of the R People.
The mother gave oral evidence of these matters and that sometimes she had gone to Victoria with the children. Also that the child was enrolled in a programme at school. There was no explanatory information about that, but is likely to be school based learning about Aboriginal heritage.
Neither parent included any information in a trial affidavit on this topic.

Any family violence involving the child or a member of the child’s family, and 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

There has been a provisional family violence order for the protection of the mother from the father. The order was made post separation.
On 7 February 2013 a final order for the protection of the mother, the subject children and the three older children was made for a period of twelve months. That order expired on the day the 2014 parenting orders were made.
The mother describes herself as having been in a family violence relationship with the father. She is of course entitled to her view based on her own lived experience. I note that Ms P told the family consultant that she had not witnessed any physical violence perpetrated between the adults.[36]
[36] Magellan Family Report dated 21/05/2019, para 210.
What does emerge is episodes of difficulty and verbal conflict during the parties’ relationship when the family regularly expanded to five children. There were two other parents (Ms P’s father and Mr W and Z’s mother) to consider. Resentment arose over who should exercise authority. Both parents smacked all the children, the father shoved Mr W on one occasion over conduct and discipline.
The evidence however does not support a finding that the mother is at risk of harm from the father.

Whether it would be preferable to make the order that would be least likely to lead to the institution of future proceedings in relation to the child

The evidence supports a finding that if X remains living with his mother his relationship with his father will end.
The mother has been found to have contravened orders in the past. She is likely to do so again if she considers that she should.
Because the father accepts the need of X to enjoy family relationships without external restraint, the father will most likely permit and encourage X to follow and express his feelings in that way.
An order for X to live with the father has a good chance, although not a certainty, of seeing X restored to enjoying connection with all his family, not just the maternal side.
The psychological and emotional risks and benefits were made clear by the evidence of the family consultant.
It may be that after the mother has complied with the period of supervision the parties cannot agree on a way forward for the mother and X to spend time together and communicate. In those circumstances the mother would likely make an application for time and communication with the child. The matter could come back on that basis.
There is less harm in that outcome than there being further contravention proceedings by the father if the X remained where he was, and the mother continued not to comply with orders.

Any other fact or circumstance that the court thinks is relevant

Between 14 January 2013 and 11 January 2018, 29 Risk of Serious Harm (ROSH) reports were received by the DCJ concerning allegations of sexual, physical and psychological abuse to the children.
No allegations have been substantiated.
On 11 January 2018 Y attended a JIRT interview in relation to allegations of sexual abuse of the children by the father. JIRT was unable to substantiate sexual harm, however substantiated psychological harm for her in the care of the mother. JIRT nevertheless assessed that the child was safe in the mother’s care and was receiving psychological support.
Orders for a change of residence for X are made accordingly.

I certify that the preceding two hundred and fifty-one (251) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 7 April 2020.

Associate:

Dated: 7 April 2020

[2020] FamCA 189

7 April 2020

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Injunction

Remedies

Procedural Fairness