Whitecross & Reilly
[2016] FamCA 254
•21 April 2016
FAMILY COURT OF AUSTRALIA
| WHITECROSS & REILLY | [2016] FamCA 254 |
| FAMILY LAW – CHILDREN – question of the unacceptable risk to a child living with the mother where allegations made 20 years ago were then accepted by a trial judge – subsequent findings of unacceptable risk taken into account – no unacceptable risk found and no basis to change residence. |
| Family Law Act 1975 (Cth) |
Evidence Act 1994 (Cth)
| AIF v AMS (1999) 199 CLR 160 |
| APPLICANT: | Mr Whitecross |
| RESPONDENT: | Ms Reilly |
| INDEPENDENT CHILDREN’S LAWYER: |
| FILE NUMBER: | MLC | 2793 | of | 2008 |
| DATE DELIVERED: | 21 April 2016 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Cronin J |
| HEARING DATE: | 30, 31 March 2016; 1, 13, 21 April 2016 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr McLeod |
| SOLICITOR FOR THE APPLICANT: | Altavilla Vessali |
| THE RESPONDENT: | In person |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Treyvaud |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Kenna Teasdale Lawyers |
Orders
That all parenting orders to date are discharged.
The mother have sole parental responsibility for all parenting decisions relating to B the child born … 2002.
Before any major long-term decision is made in relation to the child, the mother communicate with the father by email:
(a) the nature of the decision to be made; and
(b) her views as to what should be done; and
(c)requesting that he provide an answer within seven (7) days thereafter.
That if the father provides any information pursuant to the mother’s request as set out in the foregoing order, the mother shall consider it and, upon making any determination as to that decision, notify the father accordingly.
That should the father fail to provide any information to the mother within the seven (7) day period as provided in the foregoing order, the mother shall be entitled to make the decision without further consultation with the father.
That the child spend time with the father as follows:
(a)for one weekend in each three from 6.00pm on Friday until 6.00pm on Sunday;
(b)for one half of all school term holidays as agreed but failing agreement, from 10.00am on the first Saturday of the school term holidays until 6.00pm on the middle Saturday of each school term holiday period;
(c)for one half of the long summer holidays as agreed (but the duration shall also take into account the views of the child) but failing agreement, the half which coincides with the father spending time with children C and D Whitecross;
(d)for Christmas in each year from 5.00pm on 24 December until 2.00pm on 25 December in each even numbered year and from 2.00pm on 25 December until 2.00pm on 26 December in each odd numbered year;
(e)for Father’s Day in each year from 5.00pm on the Saturday evening until 5.00pm on the Father’s Day.
That the father’s time with the child be suspended on Mother’s Day from 5.00pm on the Saturday until the conclusion of school on the Monday morning after Mother’s Day.
That all school term time between the child and the father under these orders shall be suspended during school holiday periods and recommenced thereafter as though the school holidays and the suspension had not occurred.
That for the purposes of the orders, the father shall collect the child from the mother’s residence at the commencement of his time on the Friday and the mother collect the child from the father at the conclusion of his time from his residence.
Notwithstanding the mother has sole parental responsibility for the child, the father shall be entitled to:
(a)obtain information as to the child’s progress and participate in all school activities to which the parents of children would normally be involved PROVIDED ALWAYS that attendances at all school events shall be subject to any determination to the contrary by the principal of the child’s school;
(b)obtain information from and attend upon, any medical practitioner providing treatment for the child including any counselling, but always subject to the entitlement of such health professional to decline to provide such information; and
(c)be entitled to be provided by the mother with details of any serious medical injury or illness sustained by the child when in the mother’s care.
That the electronic communication between the father and the child be a matter to be by agreement between the parties in writing and failing agreement at least on one night per week to be determined by the father.
That subject to explaining these orders to the child, the Independent Children’s Lawyer is discharged from the proceedings.
That all applications of the parties are otherwise dismissed.
That pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Whitecross & Reilly has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: MLC 2793 of 2008
| Mr Whitecross |
Applicant
And
| Ms Reilly |
Respondent
Independent Children’s Lawyer
REASONS FOR JUDGMENT
In December 2008, final parenting orders were made about the child B who was born in 2002. Obviously, she was then six and is now very close to 14 years of age.
B’s parents are Mr Whitecross (“the father”) and Ms Reilly (“the mother”). Apart from a paused period from 2009 until 2013, the mother and the father have been embroiled in litigation since 2006. The current parenting application is unusually complex because it has brought into the evidentiary theatre, a host of other adults and children.
Despite that complexity, this determination is about the child and two fundamental questions. They are:
(a)is the child at risk of sexual (or other) abuse in the care of the mother as a result of the mother’s relationship with her current partner Mr S? If she is, should the child be moved to live with the father or is there some other injunctive order (as there is currently on an interim basis) that protects the child’s best interests?
(b)Is it in the best interests of the child that she live with the father anyway? If not, should the existing time between father and the child of two weekends out of three be reduced because of the child’s current views?
For the reasons that follow, I am not satisfied to the requisite standard that the child would be placed in a situation of unacceptable risk by continuing to live with her mother. I do not consider it necessary for there to be any injunctive order in place in relation to Mr S.
The father conceded that his parenting case was conducted on the basis of the unacceptable risk rather than the mother’s incapacity as a parent to otherwise care for the child. Having said that, he still thought it appropriate that the child should live in his care. That gives rise to the second question above. The evidence overwhelming supports the conclusion that the child is mature enough to have a view which should be followed by the Court particularly having regard to her relationship with her mother. There is no justification here for a change of residence.
Question (b) above has a secondary issue relating to the amount of time that the child should spend with her father in the event that there was no change of residence. The current arrangement is that she is required by order to spend two weekends out of every three with her father. I accept that order needs to be changed for the reasons that are set out below and the appropriate order, which is in the child’s best interests, is that she should spend one weekend out of every three in the father’s care.
To the extent that the mother suggested that the child should make up her mind how often she went to see her father, I reject that explicitly as well. I do not consider it is appropriate for a child of the child’s age and with her level of maturity, to have the responsibility to make that decision particularly in circumstances where there is some uncertainty about the relationship with her father and a complete absence of any trust between the mother and the father. the child’s views are certainly heeded but she should not decide her own relationship with her father. I consider that one week in every three gives her most of the things that she needs rather than what she wants.
The “sleeper” or vexed question (as it is in many of these cases) is equal shared parental responsibility. Both parties seek that order but each acknowledged that the responsibilities given under the existing orders have not worked (virtually for the entire 14 years) and are unlikely to work in the future. In final address, the mother who was without legal representation, indicated that she would prefer not to have to deal with the father. The father was not so vocal but his view was hard to hide.
After ten years of litigation it is time to reflect the reality. To avoid the stress and pressure that each parent is facing (and has faced for years) the mother should have that sole responsibility but to seek and consider the father’s views before any major long term decision.
In these reasons, I shall define major long term decisions. It is comforting to think that those decisions over the ensuing four years of the childhood of the child should be few.
The main focus
Having regard to the father’s primary focus being the risk to the child because of Mr S, and having regard to the mother’s defence of Mr S and his denials of any impropriety, it is unfortunately necessary to set out a number of “at times” confusing facts.
At the outset, there is no evidence that the child has been dealt with in any inappropriate way at all by Mr S.
The dilemma in this case arises from two issues . First, twenty years ago, Jordan J sitting in Brisbane in a trial in which Mr S was a witness, found that he sexually abused his then 11 year old step-daughter (Ms E). That decision was not appealed by Ms E’s mother with whom Mr S was living, and lived, for the next nine years.
Secondly, and to a much lesser degree, the father of Mr S, to whom I shall refer in these reasons and without any disrespect as “Mr F”, has not only had a plausible complaint made against him by the child in May 2014 but has since had two further complaints against him made to police by the biological daughters of Mr S one of whom was (when the complaint was made) 18 years of age and the other 13 years. That all related to inappropriate touching of these children and was said to have occurred in October 2015 or thereabouts. Those children are the grandchildren of Mr F and at various times have lived with the child.
The second issue concerns whether Mr S was blasé about his father (Mr F) whom he had immediately excluded from the house where the mother was living in May 2014 but had then permitted Mr F (and his own mother) to continue to have contact with his two biological children. Sadly (or perhaps unwisely) none of the evidence that might shine a light on the insidious nature of child sexual abuse was presented to the court by either the mother or Mr S and it was exposed to largely by accident. To be clear, the behaviour of Mr F is not the responsibility of Mr S nor can he in any way be “tarred” with that brush. The second issue caused consternation because it had not been mentioned by either the mother or Mr S during the investigation by a single expert psychologist in this case. Further, no mention was made by the mother or Mr S when they filed affidavits in this Court in relation to the child.
It is important to observe that whilst the child is not the daughter of Mr S, he is in a long term relationship with the mother and it would seem on her view, that the relationship will continue into the future. As such, Mr S will be a significant role model and figure for the child.
Before dealing with the positions of the parties in the proceedings, a description of the chronological facts is the only way this case (and the Court’s concerns) can be seen in proper context.
The families
The principal parties are obviously the mother and the father.
The father married Ms G (his current wife) subsequent to the conclusion of his relationship with the mother. The father and Ms G have two children, C who is aged five and D is aged one. The father and Ms G are separated. Little, (if any) information was provided by the father about the problems in his relationship with Ms G . This becomes relevant on the question of whether the father would be an appropriate parent to care for the child should the Court be contemplating a change of residence.
Mr S is the son of Mr F and Ms H. In 1996, Mr S lived with Ms I and married her in 1995.
Ms I had been married to Mr J in 1984 and that relationship came to an end. From that relationship, the children of Ms I and Mr J are said to be E and K.
After ending her relationship with Mr J, but before living with Mr S, Ms I had a relationship with a Mr L and M was born from that relationship. M lives in the household of the child.
After Ms I and Mr S began their relationship, Ms N was born. Her birth occurred in 1996 and there is significance in that date because the allegation against Mr S arose shortly before it.
Finally, O was born in the relationship between Ms I and Mr S in 2001.
The relationship between Ms I and Mr S came to an end in 2005. Soon after, Mr S began a relationship with the mother and as I have indicated, it still subsists.
Ms E is now aged 31 years and has a child of her own to her former partner. Ms E and her now four year old child live with the mother and the child and at various times, with Mr S when he lives in that home.
K is an adult and not relevant further in these proceedings.
N and O (the children of Mr S) also need to be mentioned again as they are the subject of the allegations against Mr F from October 2015. O lives with Mr S. N is now self-supporting and almost 20 years of age.
Mr S is a member of the Defence Forces and at times, because of the geographic distance between he and the mother, has maintained his own accommodation. O lived with him and at times when he was committed to military activity, she was cared for by Ms H and Mr F.
It might be suggested that a genogram was necessary but the reality is that the Court’s focus must be on the child and her relationship with the various people in her life but predominantly, how she is to be cared for over the ensuing years by the person most able to provide for her security and her physical needs.
The 1996 incident
In 1996, Mr S and Ms I were together. Ms I was heavily pregnant with N. Ms E (the daughter of Ms I and Mr J) lived with them and was aged 11 years. It is said that two sexual abuse incidents occurred in early 1996 in which Ms E was the victim and Mr S was the perpetrator.
The incidents have been the catalyst for much of the current proceedings notwithstanding they are now 20 years old. As a result of them coming to the notice of Mr J, he overheld the children Ms E and Mr K and proceedings began in the Family Court of Australia at Brisbane. The significance of those proceedings lies in the findings, judgment and orders of Jordan J.
I digress here to observe that large pieces of the judgment of Jordan J were included in the father’s affidavit. Those excerpts certainly portrayed the case that Jordan J heard but there are two concerns. First, it is unhelpful to read selective parts of the judgment as imported into the affidavit. Secondly, even those excepts have transcription errors (albeit minor). It was the Court that raised these concerns and it was agreed that the comprehensive judgment should be read and used and not the selective parts. I observe here that because of s 69ZX(3), the court may “adopt” any judgment of any other court in child-related proceedings. It was unnecessary for the judgment of Jordan J to be “attached” or referred to in the father’s affidavit in any significant way. The mother did the same in respect of judgments subsequent to the Brisbane judgment of Jordan J. These judgments should be included in the list of documents relied upon and to be read by the trial judge. It is then a matter for the court to determine whether the judgment should be “adopted”.
For my purposes, it is not necessary to detail all of the specifics of the two accusations against Mr S relating to Ms E. For the purposes of s 69ZX(3), the undisputed issue is the findings made by Jordan J. They, and his Honour’s observations, may be listed as follows:
·The conflict on the evidence is vast;
·Ms E asserted that sexual abuse had occurred and Mr S denied it;
·Ms I asserted that Ms E had lied and continued to lie about the matter;
·On 1 March 1996, Ms I heard Ms E crying and went to her, finding the bedroom door closed. Mr S was watching TV and drinking beer;
·Ms E made an allegation that sexual abuse had just occurred. Ms I saw Mr S with stains on the front of his shirt and she suggested he had masturbated;
·Ms I telephoned the police who arrived very shortly thereafter and a police officer observed Ms E under her blankets very distressed. The same police office observed an ambivalent Mr S;
·Mr S was removed by the police;
·The following morning a statement was taken from Ms E by video and she made the allegations against Mr S;
·Ms I was interviewed and confirmed the allegations had occurred;
·Mr S was interviewed by the police, denied the impropriety but was charged with offences;
·Mr S was excluded from the home (by virtue of the bail conditions);
·Ten days later Ms E “recanted”;
·Ms I withdrew the allegations against Mr S;
·Three months later, the charges against Mr S were withdrawn by the police and Mr S returned to the home;
·Six months later again, after statements were made by Ms E to Mr J, proceedings were begun and Bell J removed the children Ms E and Mr K (but presumably not Ms N who was then a few months of age).
Whilst that does not do justice to the intricacies of the contested facts to which Jordan J referred, the following statements epitomise his Honour’s findings:
Despite the lack of time to prepare herself after she had been woken by Mr S, she was then able to repeat in great detail and with great consistency those allegations to (the first police officer) at 1.00am in the morning and then again to (the second police officer) just after 11 o’clock in the morning of 2 March.
In my view, the most overwhelming piece of evidence which points to the reliability of the version given by the child and the veracity of her account of the matter is the video recording.
Overwhelming strong corroboration…emerges from the mother’s own record of interview. That statement discloses that the mother’s suspicions were also properly aroused on that night.
Mr S would have us believe that, despite this extraordinary development where the privacy and security of his home was invaded by the police in the early hours of the morning, he simply went about his business and watched TV without inquiring about the purpose of their attendance.
His Honour had the benefit, albeit some two years after the incidents, of an interview between Ms E and a family consultant. The same family consultant interviewed Ms E twice. The evidence of those reports disclosed that Ms E had told her father Mr J that she had been sexually abused by Mr S notwithstanding her recanting of those allegations and when the family consultant asked Ms E whether the abuse occurred, she confirmed to him that it was true.
Jordan J then went on to find in 1998 that the statements made by Ms E to Mr J were recent and that she had affirmed she had been sexually abused.
Jordan J referred to the obligations of a trial judge in relation to sexual abuse issues and in particular, to the High Court determination in M v M (1998) 12 Fam LR 606 and also the approach to the standard of proof in Briginshaw v Briginshaw (1938) 60 CLR 336 at 362. Jordan J said that notwithstanding he did not have to do more than examine the question of unacceptable risk, he was satisfied beyond reasonable doubt that the sexual abuse had occurred and the perpetrator was Mr S.
Although I have only quoted parts of the judgment, a careful reading of it shows (and I say this with great respect) a logical piecing together of all of the events and the observations of objective witnesses who were very close in time to the place of the accusations against Mr S. It is clear that Mr S was not a party to those proceedings and was not represented by lawyers. In addition, Ms I as a party, had no legal representation. Just how that impacted on Jordan J, I am unable to say.
In evidence before me, Mr S confirmed that he had been drunk that particular night. Despite the fact that Jordan J said he was “removed” by the police, he told me that the police officer suggested it might be better that he stayed somewhere else and indeed drove him to his friend’s place. He said on the following day, he was requested to attend the police station and the police took his clothing and also swabs of the carpet in the house which he said had been forensically tested but the results were never given to him. The case against him was ultimately withdrawn. He said that he had lawyers acting for him in respect of those charges but they did not pursue the question of the results of the forensic tests.
The dilemma
Ms E, now 31 years of age, admits the events (as she recalls them) but denies that Mr S ever sexually assaulted her or acted with any impropriety. Her evidence is that her mother Ms I “put her up” to it.
When the case began before me, it was not intended by any party that Ms E be called as a witness. Agreement had been reached before trial (originally before Thornton J) that the evidence may not be relevant. I disagreed and indicated I wanted to hear from Ms E who was readily available. I exercised the powers in s 69ZQ(1)(c), 69ZP(1) and 69ZX(1)(e) along with Rule 15.71 of the Family Law Rules 2004. No objection was taken to the Court calling Ms E and each of counsel for the father and the Independent Children’s Lawyer examined her. Critically her evidence was that she could not remember the police interview by videotaping in 1996. She remembered a nightmare and Mr S comforting her. She said she was crying and Ms I came in and said that Mr S had done something to her. She said in her words, she told Ms I that Mr S had, because she “got her mother’s attention”.
She recalled little else about conversations at that time and she did not otherwise remember going to the police station. She remembered going into some sort of foster care arrangement. She remembered Ms I ranting and saying that Mr S had done something to her. In her view now in 2016, she said she could have said anything because she was just happy to have her mother with whom she had a conflictual relationship.
Ms E said that she knew of the allegations now but she was adamant that they were not true. She said:
I’m 31; I’m not stupid; it didn’t happen; (Mr S) didn’t hurt me.
Ms E did not recall the interview in 1998 with the family consultant and there is some significance in that because she was 14 years of age. She was not the 11 year old girl who was said to have been assaulted.
Whatever question was put to Ms E, she was adamant that she had not been dealt with in an inappropriate way in respect of any of the allegations made against Mr S.
Against that, she conceded she had little or no memory about such things as the interviews but even if she had, it must also be taken into account that she had been living with Mr J and had been excluded from Ms I’s life for over a year.
It is important also to recognise that Ms E now has a close relationship with the mother (not Ms I) and Mr S; she lives at the mother’s home and intends to stay there. I do not find (and it was not seriously suggested) that Ms E was manipulated or pressured into giving evidence. To the extent that bias was considered, I do not consider her partisan. Her views were very convincing.
Ms E said that Mr S had been more of a father than Mr J with whom she now has no association but I suspect that has more to do with the fact that he has recently commenced a relationship with a woman Ms E’s age.
I found Ms E an impressive, responsive and forthright witness.
I do not say that the judgment of Jordan J was wrong nor that it was irrelevant. In respect of the expert opinion provided to the Court by Mr P in the current proceedings to which I turn below, he started from the presumption that the judgment of Jordan J was correct. As I observed earlier, the judgment of Jordan J appears logically and justifiably concerning but there is now no subsequent allegation against Mr S relating to children over the last 20 years. In addition, the principal “victim” denies there is any basis upon which anyone should think badly of Mr S and says that he is not a risk around children.
The unusual witness statement
One very odd feature of the father’s case was that in addition to the findings of Jordan J, he annexed what was described as a witness statement dated and signed in 2006 purporting to be that of Ms E. That document was tendered to show that 10 years after the criminal acts of Mr S on Ms E, the then-adult Ms E had confirmed their truth. When that document was put to Ms E, she denied that it was hers and denied that the signature was hers. She described it as fraudulent.
Ms E thought that this document had something to do with Ms I. Although little was said, it appears that the document came into the father’s possession from a solicitor’s file. The solicitor was said to be now deceased. No other explanation was given to the Court as to how this not only came into existence but in to the father’s possession.
The conciseness with which Ms E dispatched its authenticity adds credence to the fact that Ms I, if she was responsible for its preparation, had some ulterior purpose. Its purpose otherwise mystified Ms E.
Ms I
At this point, it is relevant to make reference to Ms I. She has litigated with Mr S over their children for years after their relationship of some ten years broke down.
In 2008, Ryan J who was aware of the findings of Jordan J, made final orders placing the three children of Ms I and Mr S in his care. Her Honour noted Ms I was diagnosed as suffering from borderline personality disorder.
In 2009, Austin J made further orders which restricted Ms I’s relationship with the children. The judgment of Austin J referred to Ms I’s enmity to Mr S. Borderline personality disorder loomed large amongst his Honour’s concerns about Ms I.
In July 2014, Judge Baker of the Federal Circuit Court, after a contested hearing, ordered that Mr S have sole parental responsibility for O. Her Honour said Ms I was “not credible”.
Each of those proceedings found Mr S not to be a risk to his own children. Each of the judges was aware of the findings of Jordan J.
The evidence of E is also that she has had no contact with Ms I for a number of years now. She has no desire to. She acknowledged she was estranged from Ms I but around the time of the birth of her child, she had endeavoured to resurrect a relationship but that was a failure. She has no time for Ms I at all.
What happens next?
It might be thought that after 20 years of what otherwise appears to be an unblemished record of parenting and three positive findings after contested hearings before trial judges, that there ought be no concern about Mr S being around the child.
Before making any conclusion about Mr S from what has been said, I need to refer to the recent events about which much of this current proceeding revolved. Unfortunately, much of this evidence had to be put together from a series of facts.
In November 2013, Ms I contacted the father and told him about what had happened with E.
As a consequence, the father overheld the child and in an affidavit filed 27 November 2013 in the Federal Circuit Court in support of an application for a change of residence of the child, which effectively commenced these proceedings, he said:
I have become increasingly concerned with [B’s] safety with the mother and [Mr S] as a result of matters which have occurred in recent times.
That referred to the conversation with Ms I. The father went on to make reference to “family violence between the mother and Mr S”, he having been advised that police had attended at the home in which the mother and Mr S lived, on several occasions.
The father also alleged that Mr S had behaved in an aggressive and intimidating manner towards “his neighbours”.
I pause here to say that it is disconcerting that that sort of evidence would be prepared by a solicitor and put before the Court even on an interim basis. These were assertions without identification of credible sources. Needless to say, the bulk of the rest of the affidavit referred to things that might be permitted by virtue of Division 12A of the Act but they are questionable as evidence.
The mother’s response prepared by herself sought the return of the child. Mr S filed an affidavit on behalf of the mother denying he had ever interfered with Ms E. The child was overheld for three weeks but, by orders made by consent on 12 December 2013, she was returned to her mother. This order then appears:
That [the child] live with the mother provided that the mother ensure that [the child] not be left alone with [Mr S] and shall ensure that one of the following people or either of them shall be present when and if [the child] comes into contact with [Mr S]:
(a) [The mother];
(b) [Mr F];
(c) the wife of [Mr F];
and then three other people who were named.
The Federal Circuit Court orders were brought to the attention of the Court in discussion and the point was made that it was the father who brought the substantive change of residence application. When it was before the Federal Circuit Court for the first time, an order was made for a s 11F (Child inclusive conference) report and the report writer said:
[B] saw her mother briefly in the playroom and cried and clung to her and said she wanted to go home with her. [B] then attempted to leave the playroom with her mother.
The recommendation was that the child be returned to her mother immediately. It is difficult not to conclude that the overholding of the child was not only flawed because of the source of the information on which it was based but, as soon appeared thereafter, it was unnecessary and bad for the child’s emotional health.
Mr F
As can be seen from the order, Mr F was one of the people named as a “supervisor” when Mr S was in the company of the child. As I earlier observed, Mr F is the father of Mr S.
It must also be observed that the matters other than the sexual abuse issue which gave rise to the father’s concern, do not appear to have been pursued. The focus of the hearing before this Court was on the protection of the child arising out of the allegations provided to the father by Ms I. There was no other evidence brought to my attention that Mr S had acted inappropriately but even if he had, what was the criticism of the mother? For whatever reason (bearing in mind that the mother was without legal representation) she consented to the order for “supervision” of Mr S to which I have just referred.
In some period of time shortly prior to May 2014, the child in a general conversation with her mother, made reference to the fact that Mr F had touched her on the side of her body but then she quickly added that it had been an accident. None of this evidence came to light until cross-examination when I raised it. It appeared that the child was raising a problem with the mother which was of a sexual nature because she made reference to the part of her body that she knew should not have been touched by other adults but she was quick to point out that it was an accident. The very raising of that issue caused consternation to the mother and she spoke to her parents and her sister.
The evidence which I accept, was that, until that time, Mr F was a person known to be affectionate with children and in fact the child had sat on his lap and he had scratched her back. There were obviously other children who had a direct biological connection with him as a grandfather, who did the same.
Nothing was done about Mr F arising out of that incident. It was not raised with anyone and one might conclude that he was given the benefit of any doubt.
B in May 2014 was attending a counsellor Ms Q. On 14 May 2014, Ms Q told the mother that the child had made specific allegations of sexual impropriety against Mr F to her arising out of an event with Mr F that very day. This was not innocent touching and the child was expressly describing it as inappropriate.
The mother’s reaction, supported by Mr S, was to immediately exclude Mr F (and his wife) from the home. No evidence has been led as to exactly what was said but I accept that the mother took the view that the child was truthful and that the actions of Mr F were inappropriate. Rather than contact the child’s father, the conversation between the mother and the child was along the lines that if she wanted to talk to her father about Mr F’s inappropriate touching, the child should do so when she was ready.
The notes of the counsellor admitted into evidence without objection by anyone, showed that the child was reticent to talk to her father about such a serious issue for fear that he would overhold her again. Hence my earlier reference to the overholding being bad for the child’s emotional health.
The events of May 2014 were brought to the attention of the father in September 2014 when the child told him in a trip in the car in Melbourne.
The affidavit of the mother said little about this event and its reference was found amongst the counselling notes which she attached to her affidavit.
In was only in cross-examination that she acknowledged that Mr S had some reservations about his father’s actions of May 2014. Mr S continued to not only see Mr F, but also at various times, to have his mother (Ms H) who was then accompanied by Mr F, care for his children whilst he was absent on work duties.
Again arising out of questions that were put to the mother right at the end of her cross-examination, she said that the reason the association between Mr S and Mr F ended in October 2015 was that O made an accusation of sexual impropriety against Mr F. It was left to Mr S to tell the Court that there was a further problem with Mr F in that his adult daughter Ms N had, shortly after O’s allegation in October 2015, also made an allegation.
As best I can understand, police have interviewed Mr F and he appears to have denied the allegations. Mr S has ended all contact with his mother and father and now feels somewhat uncomfortable that the warning bells were not heeded in May 2014 when the child made the clear complaint of sexual impropriety against Mr F.
It is said, and I make no finding about this, the current allegations in relation to O and Ms N are explicit and serious and if true, indicate that very serious criminal offences have occurred in relation to two young women one of whom is a child and the other, an adult.
However, it is important to observe here that the only relevance of any of this evidence lies in the suggestion that Mr S did not take action in 2014 to believe the child or in some way, did not do anything about the removal of Mr F who had been nominated as a “supervisor”. I accept that the mother had no hesitation in excluding Mr F from the life of the child in May 2014 and was supported in that action by Ms S regardless of what position he took in relation to his own relationship (and sadly, that of his children) with Mr F.
I find therefore that this event was a distraction in relation to any suggestion of impropriety against Mr S. It highlights that the relationship between the mother and the father is so poor that events such as the overholding by the father relying on statements by a mischievous Ms I take precedence over parental discussion. It highlights an acceptance by the father (but no-one else) that notwithstanding 20 years having passed since the judgment of Jordan J, Mr S is still deemed a risk to children. That assumption flies in the face of three judgments of judges who have excluded that risk. The situation has got to the point that the mother is hesitant to tell the Court (and the father) of such events as I have just described for fear that they will simply exacerbate litigation. The conflict between the mother and the father is, as Mr P the psychologist described, the metaphorical elephant in the room.
The evidence of the mother about the 1998 findings.
The mother was not involved with Mr S in 1996. She learned of the sexual abuse allegations from a number of sources. Despite the newness of her relationship with Ms S, she was unable to say exactly when she was told of them. The sources included Mr S. That came about because they were both involved in Family Court proceedings. He told the mother that he had been having “trouble” with his “ex” and was living his life in court. There is substance to that statement.
As for the specifics of the accusations, the mother could not remember what she was told. That is unsurprising because it was 12 years after the event. Despite the apparent warning from Mr S about Ms I being troublesome, the mother did learn about specifics of the accusations against Mr S from Ms I as well. The exact process of how she found out was vague but it seems that it included Facebook and from another woman who worked with her. Much of that does not matter.
The focus of this Court’s attention is the risk aspect. Rather than dismiss the stories or ignore them, the mother said she “questioned” the allegations as to whether they happened. By that she meant whether it actually happened or not, her observations were of E and N, thinking that “it didn’t add up”, but that a judge had made the judgment on the evidence; judges’ views were to be respected. She said she questioned both Ms N and O because of what she was told by Ms I. When asked whether she accepted that the allegations were true, she said both “yes” and “no” but “probably not”.
In respect of Mr S, she thought he was not a risk and she felt “safe” to say that he would be a low risk. She had heard the evidence of E. She said she had often thought about it and in particular, the statement that E made to the family consultant when she was 14 years of age. She had read the judgment of Jordan J and she had seen the videos and audio tapes of all of the investigation from 1996. The mother also observed that she had been the person making E available, not only to Mr P the psychologist, but also to the Court and indeed, to the father.
Importantly, the mother had been involved in discussions with the child about the allegations against Mr S. Her evidence which is corroborated by the evidence of Mr P, is that the child knew that there had been an incident which she described as “raping of [Ms E]” and that it was something to do with a paedophile. The mother said that the child felt better after speaking to her counsellor Ms Q. The mother conceded she had told Mr S that she did not believe that he was a risk but she had also told others that they may need to be around when Mr S and the child were together. the child knows that her mother does not believe the allegations completely.
I take into account here that this cross-examination and indeed the exposure of the mother to Mr P all occurred after what was the inappropriate conduct by Mr F. I have no doubt that heightened her anxiety as well as her vigilance. The mother’s protective skills relating to the child can be seen in relation to her actions. She did not just dismiss the child’s first unusual statement to her but rather, spoke to her mother and sister. That was at a time where there was no basis to be concerned other than the 20 year old allegations against Mr S. At that time, there had never been a suggestion of impropriety against Mr F. She acted quickly and protectively in accepting the child’s statement in May 2014 and it was never suggested to her that she equivocated, doubted the child or indeed, hesitated in her relationship with Mr S. I find there is no other action she could have taken save perhaps, to have contacted the father but in the context of their relationship and what had happened to the child in being overheld, I accept that does not affect the situation.
The evidence of Mr S about the 1998 findings
Mr S preferred to highlight his strengths as a parent in his affidavit (which he had prepared by himself) rather than what the father thought were his flaws. In his affidavit he said of his parenting dispute with Ms I, not only were there findings that he was not an unacceptable risk in relation to his child M (who had been living in the home with he and the mother) but that those courts all had the findings of Jordan J.
Subsequent hearings before Ryan J and Austin J were of the same nature.
He observed that there had never been allegations of inappropriate behaviour against him in relation to other children and it was not suggested by the father that there were.
The criticism that is made of Mr S is that he made no mention of the ongoing relationship between he and his father subsequent to May 2014 nor, more particularly, the incidents of October 2015 or thereabouts. I accept his explanation that he did not see them as relevant but I also agree with Mr P that it would have been more sensible to disclose them so that people could avoid the suspicion that he had something to hide. He was cross-examined in depth about the nature of his relationship with his father and mother after May 2014 and I accept his answers as being plausible. It is significant that even if he had some doubts about whether his father had done anything improper to B, he supported the mother in relation to banning Mr F from the mother’s household. Also I find it significant that he conceded in cross-examination that he misjudged his father by not taking a more protective attitude in his local residential area. He described the allegations as appalling.
Mr S was carefully cross-examined about the 1996 allegations. Apart from maintaining his denial, he was more expansive on what had happened. In my view, little is gained by re-examining those details because I agree with the perception of Mr P. In so far as the evidence of Mr S was concerned, I accept that he was telling me the truth.
The evidence of Ms R
Ms R is a forensic psychologist who prepared a report which was attached to an affidavit that was filed on 29 March 2016. This affidavit was permitted by an order of Thornton J.
The purpose of the exercise was to look at the propensity of Mr S for sexually inappropriate behaviour in respect of children. Ms R was not required for cross-examination nor was at any stage it suggested by counsel for the father that her opinion was disputed. It was her opinion that the risk estimate would be “very low”.
The opinion of Ms R seen in the context of the other evidence before the Court is helpful. She set out the research. Among the factors that affect the subjective judgment of the expert are the extreme minimisation or denial of the sexual violence and Ms R noted the denial by Mr S. She noted he had never been convicted of allegations but that a conviction was not a matter that gave rise to her subjective scoring. In addition, another factor is the attitude to the condoning of sexual violence. The evidence in this case supports the conclusion that Mr S does not condone sexual violence.
Ms R also noted sexual deviance is relevant. There is no suggestion of any impropriety for 20 years. Major mental illness reflects a substantial impairment of the subject’s cognition, affect or behaviour. Ms R noted (as did this Court) that Jordan J referred to Mr S as being inebriated. Ryan J referred to Mr S as being alcohol abstinent. Mr S told Ms R that there was social use of alcohol but there was no indication of dependency or it having an impact on family life or work. Neither the mother nor Mr S was challenged in cross-examination about that.
Another indicator used as the tools for the opinion was problems with intimate relationships. The evidence before me suggests that Mr S continued the relationship with Ms I for nine years and there is now longevity in the relationship with the mother.
Many of the other factors point to Mr S having no difficulties. Ms R noted the research literature repeatedly demonstrated that age is a moderating factor for sexual violence or abuse. In the case of Mr S, the facts speak for themselves but one wonders what the research might say about Mr F. The research suggests that there are very few reoccurrences of earlier inappropriate behaviour after the age of 60 years.
Finally, it is important to observe (as did Mr P) that the determination of Jordan J was not dismissed and in the case of Ms R, Ms E’s account lent little weight to the consideration of risk factors.
The expert opinion therefore is consistent with the observations from the evidence.
The evidence of Mr P
Mr P is a clinical psychologist who has expertise in children and no party challenged his expertise as a witness.
He prepared his first of two reports in March 2014 and noted the absence of allegations against Mr S concerning Ms N, O and M. In cross-examination, he said that he had read the full judgment of Jordan J and started from the assumption that it was correct.
Mr P interviewed the child and he found her presentation as unremarkable. the child told him that her father believed that Ms S had done something wrong. Mr P asked her what it was and she said:
If I had to guess what Dad was worried about I would say that [Mr S] has done some raping of [Ms E]. I guessed that from how Dad was acting and when he asked me about the worst thing [Mr S] could do.
B was able to express to Mr P how worried and anxious her father was about her and he said:
This questioning is incongruent with [the child’s] experience.
Specifically in relation to the sexual abuse allegations, Mr P said that the child was old enough to understand the concerns more so now that she has been told not the vague assertions and conclusions from which she obtained information from her father but rather from what she was told by her mother and Ms Q.
In 2014 when the first interview took place, Mr P thought a level of safety could be instilled for the child by her having those conversations. That has now happened.
When Mr P completed his second report in December 2015, he had had the opportunity to speak to Ms E. He spoke to the mother whom he found stressed and burdened but still wanting to pursue a relationship with Mr S and could see no reason why that should not occur because of her observations of the child with Mr S. Mr P suggested that one solution would be for the mother to see the video material. She has done that and indeed, it would seem that she has read every piece of material so she could to see exactly what happened 20 years ago. She still stands by Mr S.
By December 2015, Mr P thought that the child did not present herself as a child who had been abused and did not consider that Mr F had abused her. That is quite significant because of the fact that she had raised the subject with Ms Q in May 2014. the child told Mr P that she hardly thought about it and compared with other issues in her life, it was almost irrelevant. That seemed to be confirmed by Ms Q.
Mr P opined that the issue of risk to the child was complicated. He said:
From a psychological perspective, the much greater risk to [the child’s] welfare is her parents’ conflict and this ongoing dispute. It is not Mr S and what he may or may not have done and what he might or might do to [the child] that is the issue.
Mr P then opined about some solutions but those are not matters to which I need to turn because he said in evidence that the child’s circumstances were as he had described them in his report and although he acknowledged that Ms Q had suggested that the child could not “self-protect” herself or might “experiment”, he dismissed that saying that the child is bright, articulate and very alert and aware of what is going on. He thought she was a bit “bemused” about it all.
Mr P was provided with all of the information about the October events and the lack of disclosure by the mother and Ms S but dismissed all of those on the basis of his perception of the child.
The evidence of Mr P about the risk issue for the child in my view is significant in this case and very persuasive.
Conclusion
The conclusion I draw is that despite the clear and logical findings of Jordan J, I do not have to concern myself about anything other than the issue of unacceptable risk for the child in so far as any relationship with Mr S is concerned. Unlike Jordan J, I have had the benefit of hearing from Ms E whose memory was certainly questionable about some things but not others. What she was emphatic about was that she was not sexually abused by Mr S and that Ms I was the one who caused the problem that followed her 1996 complaint. It is difficult to know and inappropriate to speculate why Ms I would have called the police if, as is now hypothesised, she really wanted the complaint not to proceed because she was heavily pregnant and wanted to continue the relationship with Mr S.
Despite that unusual feature, several judges have accepted that Ms I has a borderline personality disorder and the evidence of Mr S was that her behaviour worsened towards the end of their nine year relationship rather than at the time that the allegations were made by Ms E. It is not necessary to endeavour to explain the reasons of Jordan J or hypothesise that the result might have been different had his Honour had the information that I have.
I am persuaded by the fact that Ms E subjected herself to cross-examination that she has nothing to gain by supporting Mr S other than the ongoing relationship that she enjoys. It was not suggested that she has a fear of a fallout with M, O or Ms N if she did not support the case put by Ms S. It was not suggested that her relationship with the mother would come to an end if she took an adverse stance to Mr S. She was fully appraised of the issues of risk to the child and it is inconceivable that she would put the child at risk with the same man if indeed she believed that something had happened to her. She described the relationship with the child as extremely close.
Having accepted Ms E’s evidence, I am satisfied to the requisite standard which is the balance of probabilities (but at the highest standard under s 140(2) of the Evidence Act 1994 (Cth)) that Mr S does not present any risk to the child even in circumstances if he was alone with her.
As I observed in final addresses in discussion with counsel, that is not to say that the father’s concerns should be seen as unreasonable or opportunistic. I was impressed that he was genuinely concerned about the protection of the child albeit that the conflictual nature of his relationship with the mother saw him adopt a position where there was no doubt in his mind about Mr S being a risk and that the only way to solve that problem was to remove the child. I cannot remove his doubts nor indeed his opinion by the strong statements I have just made about Mr S but on the evidence before me, I am satisfied that no risk has been presented.
A change of residence absent risk?
I have already set out the basis upon which the father initiated these proceedings. He reiterated that decision in his cross-examination. In his trial affidavit he said that he had been concerned about the child’s welfare. That was all about the sexual abuse and risk question. In his affidavit in reply to that of the mother, he otherwise said nothing that would justify a reconsideration of the primary residence order to which he consented on 18 December 2008.
Absent some such basis, there is no justification for a reconsideration of that position. Despite that, the mother sought two orders:
(a)that she have sole parental responsibility (a different position to that which she set out in her outline of case and about which she paid little attention until her evidence and her closing submissions); and
(b)that the time between the child and the father be reduced to one weekend in three (also a position different to that which she advocated when she commenced the hearing).
There was considerable discussion about the child’s views and what she was saying and whether those views that were known, should be given any weight in any event. To the extent that the father said the child articulated a different position to him to that described by Mr P, his counsel conceded no such evidence was led.
The mother’s initial position was that the child should make up her own mind about time with her father but she acknowledged that in the event that the Court placed the child with the father, she would not want that undefined position.
As the mother seeks a parenting order, it is important to follow the legislative pathway as set out in Part VII of the Act.
The legal position
Because the parties currently have equal shared parental responsibility and the mother wants to alter that, the issue is necessarily intricately wound up in this determination.
A parenting order (which is what the mother sought here) includes an order which varies an earlier order. Relevantly here, an order may deal with the question of with whom a child lives, time with the other parent and the allocation of parental responsibility (s 64B(2)(a), (b) and (c)).
Section 64B(3) provides that such an order may deal with decisions about “major long-term” issues in relation to a child. The court may (subject to the presumption later mentioned) make such parenting order as it thinks proper.
Each of the parents has parental responsibility for the child until she is 18 not by virtue of any presumption in law but because of the orders of the Court on 18 December 2008 (s 61C(3)).
The 2008 order did not distinguish which parental responsibilities were so allocated (it could have confined them to “major long-term issues” (s 64B(3)) but it did not) and as such, both parents have all of the parental responsibilities for a child. Some consent orders have limited that to major long term questions but, whether intended or not, that was not the case here.
Parental responsibility means all the duties, powers, responsibility and authority which, by law, parents have in relation to children (s 61B).
Equal shared parental responsibility which was ordered in 2008, is not defined by the Act nor was it defined by the order. A parenting order confers parental responsibility only to the extent to which it confers duties, powers, responsibilities or authority concerning the child (s 61D).
What the mother seeks here is not just responsibility for major issues but all of those parenting responsibilities.
In Runcorn & Raine (unreported [2008] FamCA 837) Murphy J said this:
The exercise of discretion in favour of excluding completely one parent from consultation and decision making in respect of major long-term issues for their children - particularly when, as here, there are many years until the children turn 18 – is, it seems to me, a very significant step, being a very serious interference with the fundamental rights of a person.
His Honour went on to observe that the exercise of discretion (to which I turn in a moment) ought be resolved in favour of an outcome which is seen to be in the best interests of the child. This clash of what is best for a child and the rights of adults to fulfil what is a recognised right or responsibility needs careful consideration (cf AIF v AMS (1999) 199 CLR 160; U v U (2002) 211 CLR 238). This is about what Murphy J described as:
the balancing of the (s 60CC considerations), always bearing in mind that these particular children’s best interests, given their particular circumstances, is the ultimate criterion.
The best indicator of whether the parents can be effective parents in respect of major long-term decisions lies in s 65DAC. It provides that if an equal shared parental responsibility order is made, it is taken to require the decision to be made jointly by those persons.
The order is taken to require each of those persons:
(a) to consult the other person in relation to the decision to be made about that issue; and
(b)to make a genuine effort to come to a joint decision about that issue.
On any view of the evidence, and specifically highlighted by two things, the parents cannot act together to make decisions about the child. In the two incidents I shall now mention, co-operative parents who were concerned would speak to each other about their child regardless of the state of their relationship with each other. To do otherwise leaves the dilemma for the child and gives rise to the possibility of misinformation and misunderstanding. There is no doubt that is exactly what happened here. In respect of the father, he acted unilaterally to overhold the child when he heard from Ms I. He should have checked with the mother. The mother learned of the sexual abuse of the child. She knew the child was having counselling and that the father would find out. She should have contacted the father to let him know.
Mr P’s view about parental decision making
I can do no better than describe the problem as Mr P saw it in his own words when he said that it was the “elephant in the room”. He considered the parents to be in a conflictual relationship and that was detrimental to the child.
How do the parents see decision making?
In cross-examination, the father conceded that he did not get along with the mother and he could not discuss issues such as schooling with her. It was put to him that such a relationship of impasse ought sensibly to mean that the parties could not have equal shared parental responsibility and he replied:
Probably right.
He then acknowledged that the parties had been in the court system for ten years.
The mother conceded that there was no communication and she preferred not to have any at all with the father. Some examples indicate the impact of what is unashamedly not only a conflictual relationship but one which is infected with a complete lack of trust.
The overholding
I have already dealt with the period of time that the father kept the child. When the mother contacted him to have contact with the child, he said he would call the police. This was a subject of some contention but I accept the mother’s version. The father is a no nonsense person who does not negotiate. His logic has been already mentioned and it was not sensible.
The hospital visit
During a period of time in the father’s care, the child had an anxiety attack. It was common ground that she has that problem. The father took her to the T Hospital where she had an ECG and then a doctor prescribed that she wear a device to monitor her heart.
When the child was returned to the mother, virtually that was all the mother was told. the child told the mother that she had been to hospital for a “heart attack”. The mother spoke to the father who simply said that the child had to wear the two things around her heart.
The mother’s reaction was that it was not a heart attack at all but an anxiety attack. The father’s position was that that was what the doctors had told him and the mother disagreed.
Each of the parties took the view that they could normally talk the child out of the anxiety attack. On this occasion however, the mother said that after returning home, the child was becoming more anxious and told her she wanted to go to hospital. The mother felt that that was inappropriate but ultimately, under pressure from the child, agreed to go. At the U Hospital, the doctor told the mother that it was indeed an anxiety attack and that there were no heart problems. The mother said she explained what the father had told her about the T Hospital and the doctor dismissed it.
The mother did not criticise the father for what he had done but rather expressed concern that he had let the child believe that she had heart problems.
Rather than the parties attend upon an expert to have a joint approach to health issues such as anxiety, this “stand off” and descriptions to the child, caused dysfunction and more anxiety. The parties do not have the ability to overcome that problem by a joint approach even with the assistance of some professional.
The contact return dispute
On one occasion when the child was to be returned to the mother, the father arrived to find that he was expected to deliver the child to someone other than the mother. As it turns out, the person was then not known to him. He refused to hand the child over notwithstanding the child was quite happy to go and he delivered her to the house of a friend.
B is not oblivious to these problems. If such an event occurred again, I suspect she would not be able to convince her father that she felt comfortable going into the hands of someone other than her mother.
The father’s marriage problems
No mention was made in his trial affidavit about his own recent marriage breakdown. To his wife Ms G , as I have already observed, he has two children. Much was made of the fact that he did not provide evidence to the Court about what was happening in the Federal Circuit Court and more importantly, what gave rise to an intervention order.
The proceedings between the father and Ms G have not been resolved albeit he says that they are now seeing much more of each other and working well together and he anticipates it will be resolved. Needless to say however, the proceedings in the Federal Circuit Court are extant and listed for final trial in March 2017.
What gave rise to concern was the fact that he had applied for an intervention order and a court made it. The father brushed aside the seriousness of that situation by indicating that he went to the police station because of the erratic behaviour of his wife. It was the police officer who took out the intervention order. His explanation was that he did not want the matter to go in that direction. This was not a simple matter however because a reading of the documents shows that the police officer concerned was sufficiently worried about the situation to apply for a warrant for the arrest of Ms G that night. The intervention order was made immediately on an ex parte basis and returnable before the Court. To the extent that there was then no problem, it presumably could have been simply withdrawn. That did not happen and the explanation given by the father was that things were going well until Ms G approached the prosecutor and some argument must have occurred as a consequence of which, the Court made the order.
Much criticism is made of the mother and Mr S for failing to provide details about the October incident revolving around Mr F but so too, the father did not provide details of what happened with Ms G apart from producing the intervention order. The allegations he made were not contained in the documentation provided and counsel for the Independent Children’s Lawyer had to seek it. It is not pretty reading in the context of the child being in that household. In circumstances where the father was seeking that the child live with him or indeed, spend time with him two weekends out of three, that sort of information should have been provided. In my view, that was more important a matter about the child than the issue associated with Mr F and the children of
Mr S.
As the Court was oblivious to what that problem was about, so too was the mother. Endeavouring to explain to a teenager what was going on in the father’s house and the exposure to family violence would make explanation difficult if the other parent did not know details. This too is a symptom of a complete lack of trust and the complete breakdown of communication.
Are there consequences for the child?
Obviously, the child is affected if she has questions and cannot raise them with both parents or she is in a situation where she is hesitant to communicate what is going on in the other parent’s household. Indicative of that problem is the fact that the child did not want the father to know about the Mr F incident for fear that her father would over hold her. Had both parents handled that properly and been in a communicative relationship, the child would not have had that difficulty. The mother’s description of the child after the over holding was that she was “clingy”. I am not surprised. The child made clear to the family consultant that she was close to her mother and wanted to be there. The absence of discussion between the parents created unnecessary anxiety.
The father conceded that in his own home, the potential for violence in front of the children was there because of Ms G ’s medical condition.
Conclusion about communication
Despite the father’s request for a continuation of the position articulated under the December 2008 orders, I am satisfied that the mother and the father cannot consult about any decision relating to parental responsibility let alone major long term issues. It is important again to recognise that the 2008 orders were not confined to major issues. A second consideration is the fact that the parties are expected, if such an order is made, to make a genuine effort to come to a joint decision. They cannot do that. The exercise of joint parental responsibility is not only shown not to have existed but any attempt would also be detrimental to the welfare of the child as shown by the examples mentioned.
The presumption
Section 61DA provides that when making a parenting order, the court must apply a presumption that it is in the best interests of the child for the parents to have equal shared parental responsibility. That presumption does not apply (s 61DA(2)) if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence. The evidence does not enable me to make any such finding here.
The presumption however may be rebutted (s 61DA(4)) by evidence that satisfies the court that it would not be in the best interests of the child for the parents to have equal shared parental responsibility.
The use of the words “best interests of the child” also appear elsewhere in Part VII of the Act.
Section 60CCprovides that in determining a child’s best interests, the court must consider the matters set out in ss (2) and (3) in deciding whether to make a particular parenting order, a court must regard the best interests of the child as paramount consideration. The mother urges the court to make a particular parenting order and albeit the father cannot any longer rely upon the risk issue, he too still seeks an order that the child live with him. Section 60CA says that the best interests of the child are the paramount consideration. That must mean that they are not the only interest but where there is a clash, the court must give priority to the child’s interests.
Section 60CC(2)
The court is obliged to consider the benefit of the child having a meaningful relationship with both parents and at the same time to contemplate the need to protect her from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In this case, the child enjoys the relationship with her father whom she loves. She learns from him and does have a desire to see him but on condition that she has some say. I have no doubt she benefits from the nature of that relationship but there is a much stronger relationship with her mother whom she sees as her form of security and her major provider and protector.
In terms of a balancing of those benefits, all of the evidence (and particularly that of Mr P) points to the fact that the child should be with her mother.
Section 60CC(3)(a)
The court is obliged to consider any views expressed by the child but that very much depends upon how much weight should be given to them. Views of children are but one aspect of their best interests. Indeed, the parties talk more of “wishes” than “views”. The two concepts are entirely different. Here, there is no doubt that the child has told Mr P consistently that she wants to be with her mother and now as she has grown older, she wants to regulate her relationship with her father. Part of that seems to be (although there was no evidence of this but rather simply a statement by the mother from the bar table in final address) that the child wants to have some financial independence by having some form of employment. The father will need to deal with that issue. But that was not the only issue. the child wants to spend time with her peers and seems to be settled into school life around which there will be obligations and commitments. The current regime arising out of the 2008 orders, is seen by the child as an impediment to her own desirable way of life.
If the court was to simply see that as the be all and end all, it is conceivable that the child might be more attracted to her peer interests rather than spending time with her father whom I accept, has much to offer her.
The current regime also has significant impediments to such things as team activities and things that can be done consistently in the mother’s home which is the child’s desired base.
Mr P thought that the child was articulate and intelligent and her views should be given significant weight and I propose to do so.
Section 60CC(3)(b), (c), (ca), (f) and (i)
All of the issues under this sub-heading relate to the very relationship between parent and child. Both parents are close to the child but there is no doubt that the child associates her primary time with her mother. Both parents have taken significant roles in the child’s life but they have been unable to participate in decisions about major long term issues because they do not trust one another. The mother argued strenuously that the father was irresponsible in respect of the payment of financial support. The father said that the mother lied to the Child Support Agency. All of those are issues about which I do not need to make any finding. Both parents are working and the child support system should sort that out. Notwithstanding the complaint by the mother that the father had not supported the child appropriately and indeed, there were arrears, that too will be sorted out by the system. Nothing I heard indicated that the child was disadvantaged and the father indicated that he was providing some things for the child in any event.
Each of the parents made no argument about the other’s capacity to care for the child and to provide for her daily needs but there is a strong question about responsibility (or lack thereof) in relation to each parent for the reasons I have earlier set out. Each of those incidents is indicative of a lack of trust but it also has a flow on impact upon the child. Whilst the attitude to parenting and the responsibilities that go with it are simply factors to be taken into account in what is in the best interests of a child, examining how the parties have treated those responsibilities (which ironically they agreed upon to be equal in 2008) gives much assistance to the Court in working out what arrangement will best suit the child’s development over what is only four years left of her childhood. If there is no communication then it is better for one parent to make the decisions so that there is no detriment to the child’s daily activities as well as the major issues in her life. If there is not to be responsible parenting, it is better that the time spent by the child is predominantly in one household where she wants to be.
Section 60CC(3)(d)
One of the considerations for the court is the likely effect of any separation of the child from either of her parents. the child expressed no anxiety about being away from her father but she certainly did show anxiety absent her mother albeit some years ago now but it has not gone away. It is important from the Court’s point of view, that combined with the child’s views, she spend the bulk of the time with her mother.
Section 60CC(3)(g)
The court is obliged to consider the maturity, sex, lifestyle and background of the child and any other characteristics that the court thinks are relevant. This is not often considered but I am dealing here with a young woman who is closely aligned with her mother and has an interest in her siblings, half siblings and step siblings. She does not distinguish between them on the basis of biology but treats them all as people of interest to her. Mr P described that interest.
As is now clear, the child wants to spend time with those people who are important in her life and therefore the time with the father must be reduced.
The relationship with Mr S
B saw Mr S as a very significant figure in her life notwithstanding for the last two years, that relationship has been under pressure. Despite all of those problems, it is a relationship which has stood the test of time and the child sees Mr S as a very significant part in her life as a father figure. It is important therefore that any restriction to that relationship has to be considered in the context of its impact upon the child. For the reasons I earlier set out, I am satisfied there is no basis for any restriction so that the child can have the normal sort of relationship that she desires.
Section 60CC(3)(l)
These parties have been litigating for virtually all of the child’s life. The impact on the child was described by Mr P. Mr P also described the mother feeling worn down. The father and everyone else involved in the case has been involved in litigation for years. It is time for that to stop.
B is now a teenager and the rest of her childhood is extremely limited. If her life over the ensuing four years is disrupted by further litigation, whilst it will not involve her directly, the consequences are as described by Mr P. the child is being subjected to the conflict. The orders I propose to make will end all of that and any person who wishes to seek to vary those orders in future, will know that the Court is now placing heavy emphasis on the child’s views rather than on their own desires.
In my view, it is in the best interests of the child that she has a very significant say in her own life.
Conclusion
Having regard to the balancing of the factors relating to her best interests, the child’s life cannot be impacted by any impasse between her parents over decision making. For the reasons earlier articulated, it is clear that the mother should be making decisions because the parties cannot. Arising out of that however, the mother agreed that she would inform the father of any major decisions that needed to made, consider any views he offered, make the decision and then advise him. Because I am satisfied her focus will be on the child’s best interests, I am satisfied that is an appropriate order.
In terms of time between the child and the father, there is no doubt that the child needs to have some control at least over the ensuing years and for that reason, I find that it is in the child’s best interests that she has the opportunity to spend more time with the people she desires to be with and doing the things she wants to do and if that means that her relationship with her father has to change, so be it. I am satisfied that it is in her best interests for an order of that nature to be made.
I certify that the preceding One Hundred and Eighty (180) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 15 April 2016.
Associate:
Date: 21 April 2016
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