Whitman & Burr
[2009] FamCA 233
•31 March 2009
FAMILY COURT OF AUSTRALIA
| WHITMAN & BURR | [2009] FamCA 233 |
| FAMILY LAW - CHILDREN - Best interests of child – Risk of emotional and physical harm – Risk of sexual harm - With whom a child lives - With whom a child spends time – Supervised contact - Views of the child FAMILY LAW - CHILDREN – Parental Responsibility – General obligations – Capacity to parent |
| Family Law Act 1975 (Cth) |
| AIF v AMS (1999) 199 CLR 160 Secretary, Department of Health and Community Services v. JWB & SMB (1992) 175 CLR 218 at 270-2 U v U (2002) 211 CLR 238 W v W (Abuse allegations; Unacceptable Risk) (2005) 34 FamLR 129; [2005] FamCA 892 W v W (2004) FamCA 1167 |
| APPLICANT: | Mr Whitman |
| RESPONDENT: | Ms Burr |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid Queensland |
| FILE NUMBER: | BRC | 6170 | of | 2007 |
| DATE DELIVERED: | 31 March 2009 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Murphy J |
| HEARING DATE: | 10 - 12 March 2009 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Lyons |
| SOLICITOR FOR THE APPLICANT: | Thynne & Macartney |
| RESPONDENT: | The Respondent appeared in person |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr George |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid Queensland |
ORDERS
UPON NOTING that the court has found that the presumption of equal shared parental responsibility is rebutted by reason of the best interests of the children C born … January, 1994 and D born … December, 1997
IT IS ORDERED THAT:
Parental Responsibility
The father shall have sole parental responsibility in respect of all “major long term issues” (as that expression is defined in the Family Law Act 1975 (as amended)) in respect of both children, save that the father shall, prior to making the sole ultimate decision about any such issue:
(a)Use his best endeavours to advise the mother in writing of the decision intended to be made;
(b) Seek the mother’s written response in relation thereto;
(c)Consider, by reference to the best interests of the children, any such response prior to making any such decision;
(d)Advise the mother in writing as soon as reasonably practicable of his ultimate decision.
Each of the parties shall do all such things and sign all such documents so as to authorise and, where appropriate, direct:
(a)Any doctor, psychologist, social worker, counsellor, therapist or other health professional treating or having professional contact with the child;
(b)Any school which the child attends;
(c)The Director of any extra-curricular school or other activity in which the child is involved;
to provide to the other party such information as might reasonably be required about the child together with any report, assessment or other such document provided to a parent in respect of the child.
Each of the parties shall notify the other of any serious accident, illness or other emergency affecting the child as soon as reasonably possible after its occurrence.
Each of the parties shall advise the other and keep the other advised of:
(a)Their residential address;
(b)Telephone numbers at which they and the child can be contacted;
(c) Any email address to which the child can have access;
and shall notify any changes in any such details within 48 hours.
The father shall do all such things as might be required to have either or both of the children attend such counselling as might from time to time be recommended by their current counsellor, Ms P, psychologist, including any further or other counselling with such other appropriately qualified counsellor whom she might recommend.
Live With and Time
The children shall live with their father.
The children shall spend time with their mother at all such times as might be agreed between the parties in writing and failing further or other agreement as follows:
(a)Until 31 December 2009 supervised by the W Contact Centre:
(i)for not less than two hours, or for such longer duration to a maximum of 8 hours that the said centre might be able to accommodate, on either Saturday or Sunday each alternate week; and
(ii)Should the said contact centre be able to accommodate same, then, for a period of one hour after school, on either Monday or Friday each week.
commencing, respectively, on the first Saturday or Sunday and upon the first Monday or Friday upon which the said contact centre can accommodate each such period of time and respectively fortnightly and weekly thereafter.
(b)Until 31 March, 2010 each Saturday from 9.00am until 5.00pm commencing on the first Saturday on which time would have fallen in the sequence contemplated by Order 7(a) and weekly thereafter.
(c)From after school Friday 2 April, 2010 until before school Monday 5 April 2010 and between those times and on those days each alternate weekend thereafter save that time shall commence after school Thursday if Friday is a public holiday or pupil-free day and conclude before school on Tuesday if Monday is a public holiday or pupil-free day.
(d)The time provided for in the preceding paragraphs of this Order shall be suspended on those days coinciding with four weeks annual leave by the father PROVIDED THAT the father provides to the mother not less than two months written notice of those days of annual leave.
(e)As and from the June/July school holiday period in 2010, for one half of all Gazetted school holiday periods with the first half in 2010 and each alternate year thereafter and the second half in 2011 and each alternate year thereafter.
The costs of supervision of time in accordance with these Orders shall be borne equally by the parties.
Communication and Restrictions
Until 31 March, 2010 the mother shall:
(a)Take all such steps as are necessary so as to ensure that her fiancé, Mr H has no oral or written contact or communication with either of the children;
(b)Not contact the children whether by telephone, orally, by letter or e-mail save during any period of time previously provided for in these orders.
As and from 1 April 2010:
(a)The restriction provided for at paragraph 9(a) of these Orders is discharged; and
(b)In respect of C, the restrictions provided for at paragraph 9(b) of these orders are discharged;
(c)In respect of D, the restrictions provided for at paragraph 9(b) of these orders are discharged such that the mother is at liberty to contact her by telephone not more than twice per week on days suitable to each but not before 8.30am and not after 8.30pm but otherwise the said restrictions shall remain until D turns 16.
The Independent Children’s Lawyer shall provide a copy of the reasons for judgment in this matter to:
(a)Ms P and such other counsellor who she might recommend;
(b)The Director of the W Contact Centre or such other contact centre or individual supervisor appointed by them or agreed in accordance with these Orders
and the publication of same to those individuals is approved pursuant to s 121(9)(g) of the Family Law Act 1975 but no other publication of the reasons, or any other account of the proceedings by the parties, is approved.
The Independent Children’s Lawyer is discharged upon the expiration of the appeal period in respect of these Orders if no Notice of Appeal is filed or, otherwise, the hearing of any appeal.
IT IS FURTHER ORDERED THAT
All extant applications be otherwise dismissed and removed from the list of cases awaiting finalisation.
Following the expiration of the Appeal period, all subpoenaed documents be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same.
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 under the pseudonym Whitman & Burr is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
FILE NUMBER: BRC 6170 of 2007
| MR WHITMAN |
Applicant Father
And
| MS BURR |
Respondent Mother
REASONS FOR JUDGMENT
C, who was born in January 1994 and is now 15, and D, who was born in December 1997 and is now aged 11, came to live with their father by reason of a Court order made in April 2008.
That same order provided that their mother spend no time with them and also provided that her now fiancé, Mr H, not be brought into contact with either child. Subsequent orders have maintained the second of those two restrictions and altered the first such that since April 2008, the mother has been spending supervised time with the children at the W Contact Centre for two hours each fortnight.
Prior to the orders just described, the mother had been the primary carer of the two children. In early 2007, events unfolded which saw the mother (supported by Mr H) making allegations that D had been the subject of inappropriate sexual behaviour at the hands of her father.
There have been, in the intervening period, numerous separate notifications to the Department of Child Safety and two reports to this court from each of Mr M (social worker) and Dr N (psychiatrist).
The Departmental notifications have had as their subject, the sexual allegations just alluded to as well as allegations that the father has been physically abusive to C and emotionally abusive to both children.
The police have also conducted two sets of interviews with the children. All allegations of physical or sexual harm have been found to be unsubstantiated. The Department did, however, substantiate emotional abuse of the children at the hands of the mother stemming from the conflict between parents and the involvement by the mother of the children in that dispute.
The mother continues to believe that the father has sexually abused D and that he has perpetrated both physical and emotional harm on C. That belief is shared, vitriolically, by Mr H.
The father contends that the children are constantly subjected to emotional pressure – and thereby harm – as a result of things that are said to them by the mother and Mr H. He asserts that this has precipitated actions by C in particular. It is common ground that C has written letters to the Independent Children’s Lawyer (copied to the mother) expressing concerns about his father’s care and expressing a strong desire to return home. He has also run away from his father’s house on a number of occasions.
The father does not accept that these actions have occurred without influence from the mother and/or Mr H; the mother and Mr H each deny this.
What are the Parties’ Proposals?
The mother
The mother seeks orders that would have the children live with her.
Mr H told Dr N during interviews for his first report that “if I have to leave for her to get the kids back then I will leave”. However, it seems that, in December 2008 the mother and Mr H became engaged and her proposals for the children’s care are predicated on Mr H being an ordinary member of their household.
The mother’s proposal with respect to the children spending time with their father in that event is more difficult to discern, despite my best efforts to during the hearing. In essence, it seems that the mother would leave the decision about whether to spend time with the father to the children. If they decided there should be time, it should be supervised for a period of months at which time it might increase. Her position was, ultimately, I think, consistent with what she told Mr M (albeit it in a different context) in interviews for his first report in November, 2007:
“22. Regarding the fact that the children have not attended contact with their father since the most recent orders, [the mother] at first insisted that she had encouraged them to go, recounting her instructions to them as ‘every week I ask them are you going to Dad’s … every week it is no, hell no’. She modified this version after I had spoken to the children, qualifying her words to them as “if it was me I wouldn’t go, but if you want to go you can”.
As will become clear as these Reasons progress, I consider the last part of that recorded statement to be particularly important, and highly likely to be a good summary of her position.
Mr M goes on to record the following which is also entirely consistent with the mother’s position in the proceedings before me some 16 months later:
“23.Of this [the position quoted in the paragraph above] [the mother] states that she has a duty of care to the children which overrides Court orders. She proposes that the children only have supervised time with their father and even then, only if they want to visit – ‘I want the kids to choose to see him and if they see him I want it supervised”
Although not articulated precisely in these terms, it seems plain on all of the evidence that this position of the mother (shared by Mr H) emanates from an assertion by her (and Mr H) that the father presents a risk of sexual harm for D and physical and emotional harm for C and, probably, both children.
In respect of parental responsibility, the mother indicated a desire that the parties be able to agree amicably on future aspects of the children’s care. When I pointed out that, on her case, there had been high conflict before she alleged that the father had engaged in sexually improper behaviour with their daughter, and before Mr H had (relatively recently) told the Department of Child Safety that the father was a paedophile, she agreed that her wish for future consultation and agreement might prove difficult.
I took her, in reality, as seeking an order for sole parental responsibility.
The father
The father seeks orders that the children live with him and that the mother spend time with the children for two hours each fortnight supervised by the W Contact Centre on either a Saturday or a Sunday.
He, too, seeks an order for sole parental responsibility together with “an injunction restraining [Mr H] from entering or remaining in a place where the children are present”. A number of ancillary orders are sought including a “non-denigration” order and orders for the provision of information about the children.
The Independent Children’s Lawyer
The orders sought by the Independent Children’s Lawyer are broadly in agreement with those sought by the father save that in respect of parental responsibility the Independent Children’s Lawyer seeks orders that would have the father make the sole ultimate decision about “major long term issues” after a compulsory process of notification and input being sought from the mother.
In addition to the time proposed by the father, the Independent Children’s Lawyer seeks in addition, time between the mother and the children “for a period of one hour immediately after school finishes on either a Monday or a Friday in each week at the [W] Contact Centre subject to the availability of that Contact Centre”.
A specific order is sought that there be “no telephone communication by the mother with either of the children”. The Independent Children’s Lawyer joins with the father in seeking the restriction on “any form of contact” between the children and Mr H. So, too, the Independent Children’s Lawyer joins the father in seeking orders for the provision of information to the mother.
What are the Applicable Principles, Issues and Considerations?
Relevant Principles
In argument, Mr George, who appears as counsel for the Independent Children’s Lawyer, referred to an earlier decision of mine in Carlson and Ors and Bowden [2008] FamCA 1064 and, in particular, to the outline in that case of my understanding of the principles applicable to parenting cases. Principally because the mother represents herself in these proceedings, I set them out again here.
The Act mandates the consideration of specified matters in ascertaining best interests, and, upon the application of the presumption of equal shared parental responsibility, mandates consideration of specified periods of time.
But, as the Act reminds the Court more than once, (eg s 60CA; s 65AA), findings as to best interests are at the heart of the decision and the task is to arrive at orders which best promote the best interests of these particular children in their particular circumstances.
That findings as to best interests lie at the heart of every parenting decision is reinforced by the Act providing that those findings are the servant of many masters within the Act, including matters that can be seen as central to Part VII.
Indeed, a central component of the Part - the statutory presumption of equal shared parental responsibility - is, ultimately, governed (in part) by an exception based on findings as to best interests. So, too, the mandatory consideration of specified periods of time can be seen to be subject to an ultimate consideration of best interests. (See the coda to each of the sub-sections of s 65DAA.)
Ultimate findings about best interests specific to the case before the court rest on a fact-finding exercise performed within a mandatory statutory framework. In particular, the Act prescribes the means by which best interests are to be determined; the heading to s 60CC is “How a court determines what is in a child’s best interests”.
Clearly enough, that section, together with complementary provisions of the Act, including the Part’s Objects and Principles, are each central to the court’s role and the orders made by it. Importantly, the Act’s mandatory considerations (s 60CC) are, in my view, like their predecessor (s 68F(2)), not objective standards. (See, eg. Secretary, Department of Health and Community Services v JWB & SMB (1992) 175 CLR 218 at 270-2).
The s 60CC considerations are signposts or touchstones within which the broad enquiry as to best interests must be conducted. That the enquiry remains a broad one is evident from the section itself (s 60CC(3)(m)).
Furthermore, ascertaining best interests by reference to those mandatory signposts and that broad enquiry must embrace the fact that: “[i]t is a mistake to think that there is always only one right answer to the question of what the best interests of a child require … [b]est interests are values, not facts” (CDJ & VAJ (1998) 197 CLR 172 at 219).
In my view, then, it is necessary to commence the application of the statutory process by examining, and making findings about, the issues specific to the best interests of these two children arising from the proposals for their care put forward by the parties (or, subject to procedural fairness, any alternative proposal which the court considers better meets his best interests – see U v U (2002) 211 CLR 238). Those findings can then be used to inform the statutory requirements.
Issues and “Considerations”
Each of the parties alleges that the children are at risk of significant harm in the care of the other. The father alleges that the children are at risk of emotional abuse in the care of the mother. The mother alleges that the children are at risk of physical and emotional harm and that D is at risk of sexual harm in the care of the father.
The mother claims (albeit in general and unparticularised allegations) that the father repeatedly raped her during the course of the marriage and alleges (again in general and unparticularised terms), that he was violent to her during the course of the marriage. Allegations of violence to the children have, though, formed part of departmental investigations carried out among the many notifications received by it. Each such claim was unsubstantiated.
Clearly then, the Primary Consideration contained at s 60CC(2)(b) is a central issue in this case.
The “views” of each of the children and, in particular, C, are also central to the decision in this case. I consider the use by the legislature of the term “views” (which, it should be noted was changed from “wishes” by the Reform Act) to be a much broader concept than that embodied by simply asking a child (even of mature years) what he or she might desire by way specific outcomes to proceedings.
In particular, I consider that the views of children (particularly when seen in combination with other “Additional Considerations” outlined in s 60CC) encompass a range of issues including the psychological foundation for those views, how any such expressed views might be reflective of, for example, attachment to either or both parents and the child’s relationship with each. The factors that might be at play (or have been at play) in forming the views of the children also have the potential to say a considerable amount about many of the Additional Considerations relevant to the children.
The views of C might be seen to be particularly important in light of the fact that he is now over 15 years of age. But the factors just mentioned become in my view, no less important by reason of that fact and, indeed, may even be more important.
The capacity of each of the parents to provide for each of the children all of the things that are required to develop their full potential is in issue. In particular concerns are raised on the evidence as to the capacity of the parents to have insight into, appropriately analyse, and consequently meet, the children’s emotional and psychological needs.
The responsibilities of parenthood exhibited by each of the parents finds expression in the facts of this case particularly by reference to the extent to which the parents (and other significant adults) have failed to draw boundaries around adult issues and failed consequently to protect the children from exposure to those adult issues.
The nature of the relationship of the children (or proposed relationship of the children) with Mr H and any impact that may have upon them is flagged as a very significant matter in the reports of each of the two experts in this case.
Similarly each of the experts flag as a real issue the willingness and ability of each of the parents to facilitate and encourage a close and continuing relationship between the children and the other parent.
Each of the issues just described might also be seen to found questions about the capacity of each of the parents (and Mr H) to provide for the needs of the children in the broad sense earlier referred to.
Each of the party’s (and the ICL’s) proposals contend that supervision of time between the children and a parent is in the children’s best interests. Specific submissions were sought, and made, in respect of the principles applicable to such an order, particularly by reference to the decisions of the Full Court in C & J (1996) FLC 92-697 and RG v JR [2006] FamCA 293, (each of which was decided prior to the Reform Act amendments to the Family Law Act).
Parental Responsibility as an Issue
Each of the parents contend for an order that they should have “sole parental responsibility”. The ICL contends for orders similar to those made by me in the decision earlier referred to. In broad terms, those orders would allocate ultimate sole parental decision making for “major long term issues” to one parent, but only after a process of compulsory, specified consultation. Mr George’s submission was based (at least predominantly) on the reasoning contained in that earlier decision. Again, in light of the mother’s self representation, it is desirable to set out that reasoning.
The statutory presumption of equal shared parental responsibility is rebuttable in circumstances where the court has reasonable grounds to believe that (relevantly) it is in the bests interests of the children for that presumption to be rebutted. Given that the Act prescribes but one (mandatory) means of ascertaining best interests (the application of s 60CC), findings as to best interests, based on the relevant considerations are called into use. In my view, though, a specific additional consideration (s 60CC(3)(m)) also emerges.
Parental responsibility is defined in the Act to mean “… all the duties, powers, responsibilities and authority which, by law, parents have in relation to children”. Save as the court orders, each of the father and mother has parental responsibility for the children. A parenting order does not derogate from that save as is expressly ordered. (See generally: Newlands & Newlands (2007) 37 Fam LR 103; esp @ pars 86 – 88; and Goode v Goode (2006) FLC 93-286 esp @ par 39).
It is necessary to be cautious in making orders to encapsulate concepts known to the Act in language which the parties (and the world in general) will understand (See eg Chappell & Chappell (2008) FLC 93-382 esp @ par 69)
The rebuttable presumption is that the parents have “equal shared parental responsibility”. That phrase is not defined. Not only is it not defined, it might be thought to involve a concept different from that which guides the practicalities of co-parenting of children in either intact families or in arrangements where high levels of co-operation, respect and agreement attend consensual post-separation co-parenting arrangements.
In those situations, there can be little doubt that, appropriately, parties share parental responsibility (as defined). Yet, common experience shows that parental responsibility (or, at least, aspects of it, for example, “responsibilities and duties”) is - for a variety of reasons, some born of necessity, others not - by no means always, or even frequently, shared equally.
The Act (s 65DAC) makes it clear that sharing parental responsibility in respect of “major long-term issues” is not a passive activity; it positively requires those having equal shared parental responsibility to make joint decisions and to consult and attempt to reach agreement in order to do so.
In this case, I find (and it is in any event effectively conceded by all parties) that the parties have no effective communication or capacity to co-parent in any meaningful way. I consider there is a negligible prospect of that changing in the future. The difficulties accordingly created, and more particularly the impact of those difficulties upon the children, seem to me to be antithetical to their best interests.
A finding that the parties are utterly incapable of achieving now, or in the foreseeable future, what the Act requires of those who share parental responsibility (and, particularly, it might be thought, where they share it equally) and a finding that this incapacity is highly likely to spill over into regular future conflict for the children appears to me to lead to a conclusion that the sharing of parental responsibility in the manner envisaged by s 65DAC – and, in particular, sharing parental responsibility equally - is contra-indicated in the children’s best interests.
Equally, though, an order for “sole parental responsibility” in favour of a party suggests, at least arguably, that the other party has no rights, responsibilities and authority in respect of “major long term issues” for the children save as expressly ordered. (Decisions in respect of day to day issues are specifically provided for: Note to s 65DAC and s 65DAE).
The exercise of discretion in favour of excluding one parent from consultation and decision making in respect of major long-term issues for their children is, it seems to me, a very significant step, being a very serious interference with the fundamental rights of a person. There is no doubt that the exercise of that discretion ought be resolved in favour of an outcome which is seen to be in the best interests of the children. But, the fact that this is the paramount consideration does not, in my view, mean it is the sole consideration nor that the legitimate fundamental rights of a parent are irrelevant. (cf AIF v AMS (1999) 199 CLR 160; U v U (2002) 211 CLR 238).
As it seems to me, a decision about parental responsibility and, specifically, about whether the statutory presumption of equal shared parental responsibility is rebutted by reason of “best interests”, involves the balancing of the considerations just referred to, always bearing in mind that the children’s best interests, given their particular circumstances, is the ultimate criterion.
One outcome of the specific application of those principles to the children’s best interests might be, for example, the enumeration of aspects of parental responsibility that will be shared (including equally) and those which are not. (See eg Goode, above @ par 39). Or, an outcome might be, for example, to leave an ultimate decision or decisions to a party, but to include a specific mandatory requirement for formal input into any such decision to be sought from the other party.
In my opinion, the latter is the course which is in the children’s best interests here and which balances the considerations just referred to. For reasons which will emerge, I consider ultimate responsibility should rest with the father.
It was argued by Ms Lyons, counsel for the father, that the ages of the children suggests that decisions in respect of “major long term issues” are likely to be few and far between. I agree. But, life is not predictable and the fact that there are likely to be fewer decisions does not, in my view, alter the views I have just expressed.
I propose to make orders that will leave the ultimate decision in respect of “major long term issues”, as defined in the Act, solely to the father, but after a process requiring him to afford to the mother notice of any such decision and to seek input from her, should she choose to give it, and requiring consideration of same by the father in respect of those issues.
Summary of Central Findings and Orders
Orders
I propose to make orders that both children live with their father and, as earlier indicated, him having the ultimate decision in respect of parental responsibility.
The issue of time with the mother is more complex. Opinions from each of the single experts whose evidence is before me are consistent: first, that the mother’s time with the children should be supervised and, secondly, that Mr H should not play any part in her time with them.
Those opinions are also consistent, though, that the mother has a loving relationship with each child, and they with her, and that the children are closely attached to her and miss her. Similarly, there is clear evidence that the children want to spend time with their mother. Indeed, if C’s wishes are to be taken at face value, he is adamant he wants to live with his mother.
Supervision is, of course, inherently restrictive of the nature and extent of the relationship that children can have with their parents. In particular, the thought of the relationship between a 15-year-old boy and his mother being confined to a contact centre is one with which I am entirely uncomfortable. It also does not, at first blush, sit easily with the notion that such an order is in C’s best interests.
Ultimately, however, for the reasons which follow, I am persuaded that time should be supervised. I am not, however, persuaded that it should continue indefinitely as is effectively advocated for by both the ICL and the father.
I accept the assessments of Mr H by both Dr N and Mr M. The submission by the mother in final address that Dr N “didn’t have a problem” with Mr H is, in my view, and with respect to the mother, not to the point. It is also indicative, in my view, of the mother’s failure to appreciate the broader thrust of Dr N’s views. The doctor ultimately assesses Mr H as a malign influence on the children and, for reasons which will emerge, I agree. I will make orders designed to ensure that the children are protected from his influence.
Findings
The central findings I make in this case are as follows:
1) D is not at risk of sexual harm in the care of her father.
2) C is not at risk of physical harm in the care of his father.
3)C and D are at a slight risk of emotional harm in the care of their father by reason of a somewhat compromised capacity on his part (and on the part of his father) to isolate the children from adult issues. But, I accept the tenor of the children’s statements to Mr M. During the course of proceedings in this court, I consider that his capacity in that respect has significantly improved.
4)C and D are at a very high risk of emotional harm in the care of their mother by reason of what I find is likely to be a continuing enmeshed relationship between she and the children (and C in particular); an incapacity to isolate the children (and C in particular) from issues relating to her emotional and psychological health (and particularly to statements by her about each) and an incapacity to isolate the children (and C in particular) from adult issues.
5)Further, both children are at a very high risk of emotional harm at the hands of their mother by reason of a continued inculcation of a belief on her part that D has been the subject of sexual harm at her father’s hands, C the subject of physical harm and both children the subject of emotional harm, together with her past, and likely future, behaviours in and about seeking to obtain “disclosures” from either child relating to any such harm.
6)The children are at a very high risk of emotional harm from Mr H by reason of his unrestrained expression of hatred toward one of their primary loved objects, namely their father; and Mr H’s past, and likely future, inculcation and encouragement of the beliefs referred to in the earlier paragraph.
7)Although the mother was the historical primary carer of the children, they have been in the primary care of the father for some 16 months. D is well settled in his care. C’s school performance has improved during that time and D’s school reports (in circumstances where, in a small school, the principal has been “keeping an eye” on her) are that there are no concerns about her presentation, demeanour or conduct.
8)Despite C running away from his father’s home on as many as five occasions (most recently in September 2008) and having written letters (copied to his mother) to the Independent Childrens Lawyer expressing negativity about his father and an ardent desire to return to his mother’s care, he is, in fact, well settled in his father’s home and his relationship with his father has improved over time.
9)C’s expressed wish to live with his mother (and Mr H) and his expressed antipathy towards his father and his father’s care of him, should not, despite his age, be accepted at face value.
10)C’s letters, and his running away from home, are an expression of a troubled adolescent significantly scarred emotionally and psychologically by his parents’ conflict and reinforced by actions of his mother and Mr H.
11)Furthermore, C’s actions are, most likely, the overt expression of a deep – and highly troubling – psychological issue clearly identified by Dr N.
12)C is receiving counselling which has been significantly beneficial. He is highly likely to need on-going counselling into the future. The father has in the past, and will likely continue to, support such counselling.
13)By reason, principally, of the matters earlier enumerated the mother has an impaired capacity to provide adequately for the totality of the children’s psychological and emotional needs. The father’s capacity in that respect is somewhat impaired, but not to the extent of the mother’s. Mr H has little capacity to provide for the children’s psychological or emotional needs.
14)So, too, the involvement of the children in the parents’ conflict, the inability or unwillingness to draw boundaries around adult issues and failure to ensure that the children are not involved in, or affected by same and the lack of insight into the psychological needs of the children speak poorly of the responsibilities of parenthood exhibited by the mother and Mr H.
15)The willingness and capacity of the mother to support a close and continuing relationship between the children and their father is, on her own case, dependant ultimately on decisions being reached by the children. Whilst the mother sees this as being child-focussed, I see it as placing an intolerable burden upon the children and, ultimately, as an abrogation of adult responsibilities. In stark contrast to facilitating a “close and continuing relationship” between the children and their father, her attitude will, as I find, potentially sow – or risk sowing - the seeds of the effective destruction of that relationship.
16)There is no realistic prospect that the mother’s fiancé, Mr H, will be supportive of the children having a close and continuing relationship with their father.
17)The father is more likely to actively ensure that the children see their mother. This is, I think, more likely to come from an acceptance of what is plainly their desire rather than a sincerely motivated independent parenting stance on his part, consistent with his insight into their best interests.
18)Ultimately, I consider that the prospects of the parents achieving, or getting close to achieving, what the children each clearly want and need (and what the Act desires) – namely a meaningful, healthy co-parenting relationship – are virtually non-existent.
19)I will make findings about supervision of time later in these reasons.
The Allegations of Sexual Abuse
Principles
These proceedings are not an enquiry into whether sexual harm did or did not occur. The task in this case remains what it is in any parenting case – to fashion orders in accordance with findings as to the children’s best interests. Needless to say, allegations of sexual harm will, though, be a crucial component of any such findings.
“Unacceptable risk” is, of course, an expression (sometimes said to be a test) which, in this jurisdiction, has been used where allegations of sexual abuse are made in respect of a child (M v M (1988) 166 CLR 69). It is important to record part of what the High Court there said (at 76):
“Viewed in this setting, the resolution of an allegation of sexual abuse against a person is subservient and ancillary to the court’s determination of what is in the best interests of the child. The Family Court’s consideration of the paramount issue which it is enjoined to decide cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse…”
Further, in the passage just quoted, the High Court, prior to the passing of the Family Law Reform Act 1995 (Cth), pointed out that:-
“In deciding what order it should make the court will give very great weight to the importance of maintaining parental ties, not so much because parents have a right to custody or access, but because it is prima facie in a child’s interests to maintain the filial relationship with both parents.”
That is, it seems to me, all the more so now consequent upon the passing of the Reform Act introducing what is now Part VII of the Family Law Act. That the inquiry in the current legislative context remains a broad one with an ultimate focus on best interests is clear from a number of sections within Part VII, for example, s 65CA and s 60CC(3)(m).
Now, just as when M v M was decided, an allegation of potential risk of harm ought not divert the court from the central task of assessing the best interests of these children (and D specifically) in which, of course, an assessment of the risk of harm is a “primary consideration”.
In W v W (Abuse allegations; Unacceptable Risk) (2005) 34 FamLR 129; [2005] FamCA 892, the Full Court held @ para [111]:
“We accept, as a matter of practice, a trial judge will almost inevitably be required in a case where sexual abuse allegations are raised to consider whether abuse has been proven on the balance of probabilities as well as considering whether or not an unacceptable risk of abuse exists. The High Court in M v M recognised the difficulty in defining with any degree of precision what constitutes an “unacceptable risk” and the cases determined after that decision testify to that difficulty. However, the questions posed by Fogarty J in N and S (1995) 19 Fam LR 837) … do provide a structure or framework which may assist to assess future risks to a child”
Justice Fogarty in the case just referred to outlined a number of questions which his Honour suggested may assist and I have many of those questions in mind in the discussion which follows.
Alleged ‘Disclosures’: Chronology, Inconsistencies and Concerns
During the course of cross-examination, the mother indicated that she had kept a diary of relevant events relating to the children. The implication was that entries in the diary were relatively contemporaneous. The mother was asked to produce the diary. She did so but indicated that some parts of it were with her former lawyers and could not be found by them. There was no specification of which parts of the diary fitted into that category.
A chronology prepared by the Independent Children’s Lawyer, was broadly accepted as accurate by the parties. The issue of alleged sexual abuse is deposed to at paragraphs 96 through to 118 of the mother’s affidavit of evidence in chief. At paragraphs 104 and 105, the mother deposes:-
“ 104.I had become aware that on [the] first night that [D] had stayed with her father overnight, on her return she said to me “I got to sleep with Daddy”, I recall that this was on the 18 March 2007”
105.After her return I noticed that her behaviour changed. I had read in the newspaper an article on sexual abuse and from reading the article it appeared to me that [D’s] behaviour fitted nine out of the ten categories suggested in that article.”
The mother then deposes to a conversation that is alleged to have occurred “on the next day (19 March 2007)”. The mother deposes:-
“106.…[D] was hanging around me like she wanted to talk. I sat down with her to talk and we talked about various things. [D] then said that she had gone to sleep on the sofa bed and had snuggled under the doona to get warm and did not want to go to her bed.
107.She said that she woke up during the night and that “Dad was there”. She said “Dad put his bits between my legs and was rubbing”, she added, “I didn’t like it but I didn’t say anything to him”. I asked her how it made her feel and she said “It was a bit nice because it tickled”.
108.I did not push [D] to discuss this matter but [D] raised the issue at other times following this conversation. She seemed to gain some sort of relief by talking and became more open as time went on. She trusted me and confided in me.”
There is a significant contrast between that evidence and that which is recorded in the mother’s diary. The entry for 18 March 2007 refers to “later finding out” that the father had “slept in the same bed as [D]”. The mother records in the diary that this is “a little worrying because while he was here it was one of his rules that there were “no kids in the bed””.
The mother goes on in the diary to say:-
“I didn’t follow this up with her [D], or let him [the father] know either. I’ll question her a little more on the way to school. But still – on the 1st night she’s there alone with him, she’s in the same bed. Weird!”
The entry for 19 March says this:-
“Spoke to [D] today. Apparently she climbed into the sofa bed and snuggled under the doona, got warm and didn’t want to go to the other bed. Apparently she fell asleep watching TV. Ahh – I’m still not happy though he should have moved her to another bed/couch or even done that himself…”
Despite what was deposed at paragraph 107, the mother apparently did not notify the Department of Child Safety, the Police or any medical practitioner. Her explanation in the witness box was that she “went into shock” and that she “didn’t want to put her [D] through it”.
When asked why, despite the things said by D, that the child was permitted by her to go on unsupervised time with the father, the mother’s response was that “she didn’t say she didn’t want to go”.
Significantly, as it seems to me, the mother’s diary does not record “on the next day” (i.e. 19 March 2007) any mention whatsoever of any of the matters deposed to by the mother at paragraph 107 of her affidavit. Moreover the diary records for that day consequent upon the child’s (innocent) explanation of the alleged events of the previous day a number of matters wholly unconnected with the topic of D including, for example, “haven’t told the kids that I have no job yet. They would only worry more and I don’t think they need the pressure”.
The dairy entry is, it should be added, entirely consistent with the version of those events provided by the father. He said that D fell asleep whilst watching TV and because he didn’t want to disturb her he left her sleeping there. He denies any form of any inappropriate activity whatsoever.
The extracts from the diaries tendered by the mother (Exhibit M11) are marked “Diary for Child Services”. In addition to the matters just referred to, on their face, they record entries for 24 March, 25 March, 29 March, 30 March and 31 March. None of those entries make any reference whatsoever to the matters deposed to by the mother at paragraph 107 of her affidavit nor, indeed, any reference to any potential concerns about sexual harm.
The father deposes to a conversation with the mother on 1 April, 2007. It occurred when he dropped the children off after a period of contact. He deposes that the mother said “right we are going to have a meeting now or I will see you in Court”. The father says that the mother had alleged that he was not abiding by an informal agreement they had reached with respect to time. The father deposes at paragraph 38 of his affidavit of evidence in chief that:-
“As I walked away, [the mother] said to me words to the effect of “If you take this to Court, I will make sure that you will not see the children until it reaches Court”. I told [the mother] that she had no basis for this and she replied with words to the effect of “I’m very concerned that you slept with our daughter on the first night you were alone with her”. Prior to this, [the mother] had made no comment regarding this. I was shocked by [the mother’s] comments and replied words to the effect of “Are you going where I think you are going with this?”. [The mother] smiled and replied “If you take this Court”. I responded by telling [the mother] that I was disgusted. [Mr H] was present during this time and told me words to the effect of, “I will back any statement made by [the mother] in any legal action”.
The mother agrees (paragraph 98 of her affidavit) that, on this date, there was a conversation about arrangements for the children. She alleges that, during this conversation, she “discussed my concern at the way that the children were being treated. In particular, [C] had been returning home following time with his father angry and upset”. The mother makes no mention in her affidavit of a conversation about D or the topic of the father sleeping with D. I have no hesitation in preferring the father’s evidence in this respect.
I am strengthened in that assessment by what I regard as the significant fact that, the day following this conversation, the father approached the W Office of the Department of Child Safety expressing concerns that the mother was making allegations against him of sexual abuse. This approach by the father occurred, on any view of the evidence, independent of any approach by the mother or any threat to approach that Department by the mother. The father again called the Department of Child Safety a few days later on 5 April 2007, regarding those same concerns.
In a statement given to the police in June 2007 (Exhibit ICL3) Mr H says of a conversation between D and her mother that “[D] had made a comment to her that her father had slept with her on the Saturday night and that’s all [D] would say”. If Mr H’s evidence is correct, it is in contrast to the evidence of the mother at paragraph 107 of her affidavit. Mr H speaks in the same police statement of a conversation which, he says, occurred a couple of weeks after the 17/18 March contact visit. It seems clear that this is the same conversation which both the mother and father have occurring on 1 April 2007. He says there that the mother had said to the father “Why have you slept with our daughter on her very first night there”. He says that the father “stormed off” and said something like “you’re sick trying to pull something like that on me. If you ever try to stop me seeing the kids I’ll kill you”. [The father] then drove off.”
D was interviewed by the police (Detective R) on 20 May 2007. The catalyst for the interview and the mother’s complaint giving rise to it, appears to be a conversation by D with Mr H and some drawings done by her at that time. The statement by Mr H to the police (Exhibit ICL3) records:-
14. I remember an occasion in May 2007 in the dining room at home. [the mother], [D] and myself were present. The conversation started because [D’s] attitude towards everyone in the house was shocking and every time she spoke to her father on the phone she got worse. I said to [D] “Why is every time you talk to your dad that you treat everyone like crap and you treat him like his is perfect”. (I interpose here that at the time that Mr H asked her this question, D was about nine and half years old.)
15. [D] just shrugged her shoulders.
16. Later on the same evening I had a conversation with [the mother] in which I said that my stepdaughter had been molested by her father and her attitude when that happened was similar to the attitude that [D] was demonstrating towards us at that time. [D] was present for this conversation then I said directly to [D] “has your dad ever touched where he shouldn’t touch you?”.
17. [D] looked very vague and said “what do you mean?”
18. I said “Can you draw me a picture where daddy touched you?”
19. [D] got down on the floor of the office at home and she drew a picture. She didn’t say anything while she was drawing. On this picture she drew a line to her elbow. I said: “Is there anywhere that daddy’s touched you where you think it’s wrong? Just draw circles on the picture where daddy touched you where you think it is wrong”
20. [D] drew a circle around the stomach area. Then she said “Can I draw a picture from the back because that’s where daddy touched me from behind”.
21. I said “just draw a circle in that area”.
22. [D] then drew another picture which looked like stick figures. She told me that she was the front figure and that daddy came up from behind her and that he pushed his bits up against her.
23. I asked [D] what daddy was wearing.
24. [D] said his underwear.
25. I asked [D] what she was wearing.
26. [D] said a yellow nightie…
28. About two or three days later [the mother] and I took [D] to the […] Police Station. “
The police statement goes on to indicate clearly that no further conversation ensued between D, and the mother and Mr H, after the police interview. Those conversations occurred despite, in an initial conversation, Mr H referring to the fact that “[D] didn’t want to talk at that time”.
Questions then ensued, according to Mr H’s police statement, between he and D about the police interview including specifics of that interview. Mr H goes on to say in the statement that it was during that conversation that D said “daddy rubbed his bits between my legs on my woo-hoo”. This last reference is at odds with Mr H’s evidence in the witness box. Mr H’s evidence there was that D had told her mother that the father had “rubbed his bits on her woo-hoo”, that he didn’t hear her say that but was told of it by the mother.
In the witness box, Mr H gave as his reason for having the conversations with D just indicated, that he “wanted to make sure the child was telling the truth before anything was done”. Evidence of the sequence of what occurred during D’s drawing given by Mr H in the witness box is as follows: D drew one picture. She didn’t say who it was. Mr H said to her “You show us on here where you think you were touched where you think was wrong”. D drew a mark on the elbow. Mr H said “that’s nothing”. D then looked at him. He asked her if there was anything else. She then drew two circles on the chest area of the picture. She then said she would have to draw another picture. He said “just do it on this”. She then drew a mark where she said the father had “touched her” and Mr H indicated that was the “vaginal area”.
It should be noted that D drew initially, in response to Mr H’s direct leading question, two areas that Mr H regarded as being perfectly innocent. When D had drawn a circle in an area which, apparently, satisfied the curiosity of the mother and Mr H, further questioning (and drawing) stopped.
Of course, accepting Mr H’s account to the police means that, preceding the drawing, there was a conversation between the mother and Mr H in which Mr H indicated that his stepdaughter had been molested by her father and that her attitude was similar to the attitude that D had displayed. Staggeringly in that police statement, Mr H, apparently unashamedly, says that D was present for that conversation. It is in that context that he directs a leading question to her “has your dad ever touched you where he shouldn’t touch you”.
Interestingly, while the mother’s exhibited diary entries indicate no disclosures by D in the period between 19 March and the events just described in May, they clearly display a highly negative attitude by her toward the father and, specifically, toward the father spending time with the children.
For example, her entry on Wednesday 28 March indicates her strong disapproval of what she alleges is the father’s failure to observe an informal agreement made between them with respect to time with the children. She says:-
“…that would be a blatant severing of the agreement we made and only reinforce how much he listens and respects me. If the Gold Coast was his father’s home town – possibly they could bump into each other – but seeing as he lives and works in [L] - I believe it would have to be a “set up”. If it actually happens, I will let [the father] now exactly what I’ll do to him, I will go for half the shares, I will go for his “super”, he will have NO contact with the kids at all until it goes through the Family Court and the final insult will B that I will sue him for emotional abuse and all the times he raped me while we were together”. [emphasis in original]”
By way of contrast, (and of considerable interest given the assertion by the mother of her continued concern about sexual abuse of D by the father) the entry for Saturday 14 April 2007 records:-
“The kids are fine. [D] was playing lego with [X]. [C] was on the Xbox with [J]. They’d been 2 the beach & had a good time with their dad. Maybe he’s finally learning how 2 B a parent!”
Involvement by the Department of Child Safety was the subject of evidence from Ms B who is attached to the W office of the Department of Child Safety and has, until relatively recently, been the contact officer responsible for this family.
Having interviewed D some three days or so after the events of early May previously described, the position of the police was that there was no evidence to support any offence having occurred and that the matter should be recorded by the Department as unsubstantiated, which was duly done.
It was a few days after this that the police interview, and the conversations between Mr H the mother and D, to which I have previously made reference, occurred and were recorded in Mr H’s police statement.
As a result of those conversations the mother brought D back to the police station for a further interview. At that time the police were shown drawings done by D (Exhibits ICL1 and ICL2). The original drawing said to have been done by D with the circles earlier referred to was, it is said, provided to the mother’s then solicitors and cannot be found.
During that second police interview (which occurred on 6 June 2007) D made a statement that disclosed inappropriate touching of her by her father. She claimed that her father “touched my woo-hoo at night and I did not like it”. As a result of those statements the police indicated that the matter could not be recorded as unsubstantiated and had to be referred to the reporting officer for investigation. Thereafter Mr H gave the statement to the police (dated 7 June 2007) earlier referred to. The father was interviewed by the police and he denied any and all allegations made against him by D.
Discussions took place, it seems, with the Director of Prosecutions in late June 2007 and the DPP are recorded as being of the view that charges would not proceed against the father due mainly to “inconsistent versions provided by the child in her two interviews and the suggestive conversations which occurred at home involving the subject child between the two interviews”.
The Director of Prosecutions also noted that the father’s version mirrored the child’s first version in which no offences had been disclosed.
A further notification was made to the Department as a result of which an investigation occurred in October 2007. As a result, officers of the Department of Child Safety interviewed the children at their mother’s home. D made no disclosures to the Departmental officers about alleged sexual abuse. C was also interviewed. During that interview he made no disclosures pertaining to alleged sexual abuse of his sister. He alleged that the father was using martial arts techniques on him.
Departmental notes made on 11 October 2007 indicate that the police reported that there were inconsistent interviews given by the child and that the child had made no disclosures. The case was unsubstantiated. A similar notification was made in respect of allegations of physical abuse of C by the father. The department records indicate an outcome of “none of the children have experienced harm of a detrimental nature” and that “the assessment is unsubstantiated”.
During her interview with Dr N in January 2008 the mother said that it was her belief that “the police believe something happened”. She stated that “I am not sure what she [D] said to the police but he spooned her from behind in bed and had his way without actual entry”. Dr N records that the mother stated with regard to the allegations around D “I had always thought he might have” and that she “didn’t trust him with her”.
The Departmental records refer to a telephone conversation with Mr H on 21 February 2008. That telephone conversation is said to have occurred “approximately ten minutes after speaking with [the mother]”. Details of that conversation include the Department recording that “[Mr H] stated that he was not happy with the police outcomes regarding the allegations of physical and sexual abuse”; “[Mr H] called the father a paedophile repeatedly”; “[Mr H] called [Detective R] (from [W] CPIU) a paedophile”; “[Mr H] stated that it is his belief that [Detective R] is a paedophile” and further that “[Mr H] stated that he would go to jail due to breaching the court order in order to protect (children)”.
Approximately four days later, the mother telephoned Ms B at the office in which conversation the mother stated that “she wished to apologise profusely for [Mr H], as [Mr H] had requested that she apologise for his behaviour during the phone conversation last week”. Quite why it was necessary for Mr H to ask the mother to apologise for his behaviour was not explained.
At paragraph 110 of her affidavit of evidence in chief, the mother deposes that “on another occasion [D] said “before he put his bits between my legs his fingers were inside me and it hurt”.” At paragraph 109 it is deposed:-
“I recall on another occasion [D] said “Dad was rubbing between my legs with his bits until it became sticky”.
The specific reference about “becoming sticky” and the allegation of digital penetration are not recorded in any part of the diaries produced by the mother. I can find no reference to digital penetration anywhere in any other part of the evidence.
I reiterate that the mother says that there were parts of the diary provided to her solicitors which now can’t be found. I am somewhat sceptical of this claim given the other matters relating to the “initial disclosure” and what was in (and more poignantly not in) the diary thereafter.
Interviews for Mr M’s first report occurred on 6 November 2007. Having previously determined, in approximately June 2007, that there was insufficient evidence to proceed with charges against the father, approximately four weeks prior to the interviews with Mr M a further investigation by the Department of Child Safety is initiated. I am not convinced that this is coincidental.
The mother told Mr M (para 65 Mr M’s first report) that she raised the matter of the sleeping arrangements on 1 April 2007, because “I wanted his reaction… his reaction was something I had never seen before, I was in shock”. She described his reaction as anger and said that she “knew something more had happened” and with this she decided to interview D. At paragraph 87 of the report Mr M reports as follows:
“87.She said that she did not see her father anymore “because of the wrong way he slept with me, Dad curled up behind me and put his penis on my vagina and rubbed it.” She said that she told her mother the day that she came home. She did go back and see her father after that and went to the Ipswich show, and said that she had a good time.”
It is quite clear, that it is not correct for D to say that she told her mother the day after she came home if what her mother has said on oath is correct. This is plain not only from the mother’s account, but from the account given in her diary.
The account given by the mother to Mr M seems an amalgam of the various occasions upon which the mother (and Mr H) had raised the issue of the father sleeping with D. Mr M records (in respect of interviews occurring in early November 2007) that:
“96.[The mother’s] account of the interview with [D] is as follows. The interview was planned and occurred in the presence of Mr [H]. [The mother] also states that “I know that [C] was listening”, although he could not be seen.
97.Her account of this interview was interlaced with her personal thoughts at the time. She stated “I sat down and I said that night you slept with Dad… She looked guilty as hell… I said did he touch you? She said yes, on the elbow. I thought (in exasperation) this could go on forever!” She continued asking her again “and she drew a circle around her chest, all I thought, nothing there (sexual)”. She then said “was there any where that he touched you that you don’t think he should have ? and she said from the back, and she had two stick figures spooning with his penis sliding out behind… That freaked me right out.”
98.These comments attributed to [D] were not repeated in her police interview, wherein it was assessed that her version of events correlated with the account provided by her father, and nothing untoward was evident. However, since that time [the mother] and Mr [H] state that [D] has disclosed more information.
99.The context to this disclosure was apparently these interviews, [the mother] stating that after she explained to the children about this assessment “[D] turned around, out of the blue, and said what if I tell the man that I don’t want to go to Dad’s cause he slept with me bad and his penis and got all sticky? She states that she has reported this to the Department of Child Safety.”
As part of his report, Mr M says:-
“108. It is my view that [the mother] (with the help of Mr [H]) has methodically and consciously defiled the bond between the father and the children through the supply of concocted information to both, exacerbated by trumped up claims of sexual abuse. The means by which they have sought to influence the children are endless, including such things as telling the children that their father is a rapist, a liar and a paedophile. All of these allegations have been thoroughly investigated by the police and found to be wholly unsubstantiated.”
I record that Mr M’s opinions as to the ultimate issues are not persuasive of my findings about same.
I said in earlier ex tempore reasons, delivered in respect of an interim application, that, in my respectful view, family reporters – particularly those undertaking broad-based assessments of family dynamics, children’s developmental levels and needs and the like - need to be particularly cautious about giving opinions on matters that are, ultimately, matters for determination by this court.
Obviously enough, the distinction is frequently blurred: opinions expressed in the context of broad-based family assessments can, particularly, given that assessments as to best interests involve issues of values as well as facts, be interwoven with opinions that might be seen to be “value judgments”. The task is a difficult one, made no easier where a matrix of facts, sometimes overlapping and contradictory, is involved. Nevertheless, I consider that the opinions just expressed go beyond that which Mr M’s expertise allows him to express.
Context
I have had the opportunity to observe Mr H in the witness box. I have also had the opportunity to observe the mother in the witness box and to watch her as she conducted the case on her own behalf. Her material was also, I gather, prepared by her without legal assistance.
I am conscious that self-representation (and parties preparing their own material) may create some disadvantages for them. I have sought to be particularly careful when assessing the mother and her evidence to bear that in mind. (I have in mind, for example what the High Court said in Neil v Nott (1994) 68 ALJR 509 at 510.)
I attempted to give the mother significant latitude in the presentation of her case, including, for example, allowing her to, in effect, expand upon statements made by her in evidence during the course of conducting her case from the Bar table.
It can, I think, be fairly said that, to use the words of the High Court in Neil v Nott, above, the mother’s case was, to a certain extent, “… obfuscated by [her] own advocacy…”.
A corollary of the concern about self-representation just expressed is, though, that it can also bring with it the opportunity for a trial court to see and hear things from a party that otherwise might be shrouded in the expertise of their representation. Mr Justice Wilson (UK) said, in his Atkin Lecture in 2002 entitled, “The Misnomer of Family Law”):
“… I have reluctantly to admit that there are benefits for the judge in the appearance in person of a parent; let us say for convenience, a father. One sees him in action throughout the case, not just when produced by the advocate for his performance in the witness box. One sees him when he is tired and under stress … one sees him cross-examine the mother … [T]he father provides the judge with a valuable insight. There is no better way to discern the quality of their dealings outside court, for example, whether handovers of the child between them would proceed sensibly, and to study their language including of the body, towards each other in that unenviable situation.”
Here, the impression I gained of the mother matched the comments made about her by both Mr M and Dr N. She was, it seemed to me, a highly stressed person who, on many occasions, struggled to exhibit insight into the ramifications of what was being discussed. Her failure (as I find) to appreciate the potential for emotional harm in sharing thoughts of self harm with her adolescent son is a particularly acute example to which further reference will be made below.
Here, I consider that the mother’s self-representation provided an opportunity (albeit a relatively limited opportunity in an unusual environment) to “discern the quality” of her capacity to parent, including her attitude to the father and the responsibilities of parenthood exhibited by her.
I am also acutely aware that, in cases such as the present, where the father and the ICL ultimately seek orders which, in substantive content, are similar, that the “spotlight” of the hearing can shine brighter on an unrepresented party in the mother’s position. Because the spotlight of enquiry shines brighter, any flaws tend to be all the more vividly exposed.
Speaking generally, the experts whose evidence is before me, express observations of the parties which accord broadly with my own observations of the parties in the witness box and the impressions gained from reading their affidavit evidence.
I have no hesitation in finding that both the mother and Mr H have no difficulty at all in assuming the worst of anything said by either child, in so far as it reflects - or might reflect - adversely on the father.
Moreover, I consider that their pre-existing personalities and antipathy towards the father are highly likely to lead to an inaccurate recall of what was said by either child, or alternatively, a self serving account in that respect.
Both Mr H and the mother exhibit a barely concealed hatred of the father exemplified perhaps most poignantly by Mr H’s vitriolic and unabashed statement that he could not see any good whatsoever at all in the father – “absolutely none” – and that, in respect to any good qualities, “if he has any, I haven’t seen them”.
I also consider that each of the mother and Mr H have a desire – probably unconscious, but I am not completely convinced about that – to twist statements made by others, including the children so as to paint an adverse picture of the father. A good example was provided by the mother in the witness box. The mother was anxious to tender before me a letter from the Department of Child Safety which ultimately became Exhibit M8. The mother was anxious to indicate that harm had been substantiated by the Department against the father. The letter is dated 10 June 2008 and relevantly provides:-
“The [W] Child Safety Service Centre assessed the concerns in relation to your children [C] and [D]. As part of the assessment of the notified concerns Departmental workers spoke with you on 21 February 2008 and 25 February 2008. Departmental workers also spoke with your children [C] and [D], as well as their father… As discussed with you on 21 February 2008 the outcome of this assessment is SUBSTANTIATED child not in need of protection, for your children [C] and [D].” [Bold in original]
Contrary to the mother’s assertion, that was not the Department’s substantiation of harm of the children at the hands of the father, but, rather, a substantiation of harm (emotional harm) at the hands of the mother.
Ms B said in the witness box that “there was nothing to substantiate claims of sexual or physical harm but rather there was evidence to suggest that [C] had been spoken to inappropriately by the mother (and probably Mr [H]) and that emotional harm was substantiated due to the distress this had caused him.” Ms B also said in evidence that “[the mother] did not comprehend the impact of (emotional) harm upon the children.”
With this assessment I respectfully agree. As earlier indicated, it is entirely consistent with my impressions of her and her evidence during the course of the hearing.
The capacity of the mother to either distort evidence or alternatively to present it (whether consciously or unconsciously) in a self-serving way is starkly illustrated by evidence from Ms A who is the supervisor of the contact centre which has been supervising time between the mother and the children pursuant to court orders.
The mother indicated in evidence that Ms A had raised in conversation with her outside the contact centre, when both were having a cigarette, that Ms A had said that C had spoken to her and, specifically, said to her that the father and the paternal grandfather were pressuring C to agree that an attempt had been made to kidnap C (by the mother and/or Mr H).
The mother alleges that she said to Ms A words to the effect of “I wish I could have that in court”. The mother alleges that Ms A responded that “she didn’t want to be quoted and she said that, if asked, she would deny ever having said it”.
Ms A’s evidence was in stark contrast to this. I unreservedly accept her evidence. Ms A made the point (which to me was unsurprising) that, in light of the sorts of matters dealt with by the contact centre and the serious allegations almost invariably at their heart, there was a policy to record in writing each and every thing said by a child. Ms A said that it was her invariable practice, and the invariable practice in the centre, to make sure that occurred.
Ms A said she could recall no such conversation with the mother and, if any such conversation had occurred – or any conversations like it – it would have been recorded in the notes. No such conversation is recorded in the notes. Furthermore, whilst Ms A could recall having a cigarette with the mother on occasions she can recall no such conversation of the type the mother alleged. She indicated that it would not be her practice to have any such conversation because of the factors just mentioned.
I find that the mother has either concocted this conversation or (perhaps even worse, in the context of the issues in this case) has invented in her mind a conversation which she believes occurred, but which in fact did not occur. That conversation, clearly enough, would paint the father in a significantly bad light, particularly given that allegations are made by each of the parties that the other exerts emotional pressure on the children and each of the report writers in this case have identified that as being a concern in respect of the children.
C has been seen by a counsellor, Ms P. The evidence is, it seems to me, very clear that this counselling is benefiting him enormously. I can only hope that it continues. There is no evidence before me in respect of the four sessions that Ms P had with D some time ago. In respect of C, Ms P said in a report that became exhibit ICL8 that:-
“It is my assessment that while [C] has made progress in acknowledging positive gains in his relationship with his father, it is hampered by a perceived need to remain aligned with his mother. As contact with his mother progresses, it is my belief that this struggle will become increasingly difficult for [C] to manage. As such it is recommended that ongoing treatment remain available to [C].”
Interestingly, this statement, although made independently of Dr N, echoes a statement made by Dr N which I found profoundly troubling. The doctor reports C as saying, during the interviews for the most recent report on 29-30 January 2008 as follows:-
“([C]) stated that Mr [H’s] role had also been to stop his mother from killing herself and that his mother had been telling him about this. He stated that his mother had said to him that she was like an open book, that she told him everything. He stated that he worried a great deal about his mother and was worried about her safety and well being as a result of these statements that she might harm herself.
He stated that he felt very torn between all the parties involved. He did not express a strong relationship with Mr [H] but said from his point of view Mr [H] was a good guy.”
In a subsequent interview some 12 months later on 30 January 2009, Dr N says:-
“He reported that he worried a great deal about his mother and “how far her depression will go”. He stated that “at the contact centre she said she was taking anti-depressant pills because of the court case, I was wondering what would happen if the depression went past the pills… She’d give up completely and totally lose the plot”. When specifically asked he stated that he did not think that she would actually hurt herself. I asked him if it was possible that he had run away in September because he was worried about his mother. He stated that this was at least 55% of the reason.”
The younger of these two children, D, seems, on all of the evidence, to have been less affected by the sorts of pressures to which C made reference to Dr N. However, I reiterate the evidence concerning the pressure put upon her in respect of interviews conducted by both Mr H and the mother.
I am very concerned about the impact this has had on D generally. In the context of the allegations of sexual abuse, I consider it highly likely that D too has “a perceived need to remain aligned with”(her) mother.” I consider it likely that this has impacted upon statements made by her about abuse at varying times.
Conclusion
I am not convinced that I can place any weight whatsoever on evidence by either the mother or Mr H as to statements allegedly made by D.
I consider that any “disclosures” made by D are highly likely to have been influenced by leading questions (and leading behaviour) on the part of the mother and Mr H and to have been influenced significantly by D not only overhearing conversations between the two of them about such matters, but also being exposed to highly negative comments, and most likely specific assertions, made by them about the father.
I consider it highly likely that Mr H has been vitriolic and unrestrained in the comments made about the father in front of the children. As will be discussed below, I do not accept the evidence of either the mother or Mr H that inadvertence is the reason that the children have overheard comments made by them about the father or that these things were overheard accidentally by the children.
The evidence of the mother and Mr H is inconsistent and unreliable with respect to things allegedly said by D about sexual abuse.
The best evidence of the initial “disclosure”, even on the mother’s case, is D giving a wholly innocent explanation of she and the father apparently sleeping in the same bed. It is a version wholly consistent with the evidence of the father.
I utterly reject the explanation of the mother that D gave an innocent explanation of the events of 18 March when questioned by the mother on 19 March because she was “parroting the father”.
The Department and police have investigated the matter on more than one occasion and have not substantiated any concerns of harm in respect of alleged sexual abuse by the father.
D has exhibited no behaviours, nor made any statements, that have caused concern to her school who have been closely monitoring her (as they do according to the evidence of the principal with all children who are experiencing conflict at home).
D has consistently expressed a view that she wants to spend time with her father and has no concerns in her father’s care.
I am not convinced that the mother or Mr H can contain themselves in the presence of the children either by reason of the statements they make or the negative attitude they express about the father to the children. Specifically, I am by no means convinced that either the mother or Mr H would desist from continuing to inculcate the notion that D has been sexually abused by the father.
Mr H’s vitriolic and quite extraordinary outburst with officers of the Department of Child Safety is a good example, in my view, of his inability to contain his emotions in that respect.
Similar considerations apply to allegations of physical harm of C and there is, in my view, no reliable evidence supporting such allegations. The Department has found such allegations are unsubstantiated and I agree on the evidence before me.
Views and Emotional Harm
The issue of the children’s views (and C’s in particular) is strongly interwoven with the issue of emotional harm to the children.
There is little doubt that C has expressed, frequently, a wish to return to his mother’s primary care. Equally, C has made a number of statements critical of his father’s care, and consistently said that he desires being removed from that care.
The comments just described can be seen expressed in a number of different ways in both reports from Mr M and both reports from Dr N.
However, as indicated earlier in these reasons, it seems to me that those wishes ought not be taken at face value because, first, the notion of “views” as referred to in the Act is of broader compass and secondly, because, in any event, those wishes (or “views”) are influenced by a number of factors.
I have no doubts that the mother and Mr H have engaged in words and actions that clearly indicate a highly negative attitude of the father, including accusing him of abusive behaviour, in front of the children. The mother gave evidence, which I found wholly unsatisfactory, that, in effect, C had accidentally overheard conversations between she and Mr H (and she and others) critical of the father.
Capacity to Parent; Capacity and Willingness to Facilitate a Relationship
It will be clear from what I have said earlier in these reasons that I consider the mother and Mr H have very little capacity (or willingness) to facilitate an ongoing meaningful relationship between the children (and C in particular) and the father.
I think it highly likely that, if the children were to live in the mother’s care with Mr H, it would not be long before the father had no effective relationship with his children at all. In that respect it is probably not necessary to go further than the unparticularised and unspecified orders sought by the mother (and supported by Mr H) to the effect that time with the father should occur but only on the children’s terms.
Mr H’s view, expressed in the witness box, was that “you don’t force the children to see someone they don’t like – you leave it up to the children”. Whilst claiming that he had “never tried to stop” time between the children and the father in the past, Mr H was of the view that the children should see the father but only as often as they wanted to. When questioned about the practicalities of that, he admitted that he did not know how that would work on a practical level.
Furthermore the attitude in that respect is exemplified in my view, by questions asked of Mr H about an undertaking given to the Court in April 2008 that he would not speak or have any contact with the children.
He claims to have abided by that undertaking. He was asked if C contacted him after the proceedings and the undertaking continued to apply, what he would do. He responded “it’s a hard one – I wouldn’t like to turn down a child – I would have to think about it then”. Then almost as an afterthought he added “I would have to abide by it otherwise I would get locked up”.
In assessing the parties’ respective capacities to parent, I should also mention Dr N’s specific opinions with respect to the parties.
The doctor says of the mother that she:-
“…probably met criteria for an adjustment disorder with depressed mood and possibly for a major depressive episode. It also seemed most likely that she had an enmeshed relationship with [C] where she had difficulty setting limits upon him and would acquiesce to his wishes regardless of whether his wishes were in fact in his best interests. It is most concerning that she has involved [C] in her life events to the extent of telling him about her allegations of rape towards his father and also describing to him her desire at times to kill herself and the fact that Mr [H] was there to prevent [sic] her from doing this…
In my opinion [the mother] will have difficulty in supporting the father in having a relationship with his children unless this is enforced in some way. I have significant concerns about her parenting as I feel that her boundaries particularly with [C] have significant weaknesses as detailed above.”
In respect of Mr H, Dr N opined:-
“[he] met criteria for an adjustment disorder with depressed mood and possibly had met criteria for a major depressive episode in the past in partial remission. It also seems likely that he has significant antisocial personality traits although it is not clear whether he has a full blown personality disorder…
It seemed very unlikely that he could support the children in having a relationship with their father given his clearly expressed views and lack of flexibility regarding these views. I do not feel I have sufficient information to comment on his parenting abilities.”
In respect of the father:-
“[he] did not diagnose criteria for any psychiatric disorder at the time of review. It seems to me that he had a slightly more obsessional and organized temperament than the other adult participants in this case. This could be associated with being somewhat more controlling. There was no objective evidence to support the allegations that he was violent or threatening. Despite investigation and consideration of the matter by the Child Protection Investigation Unit he is not facing any prosecutions with regard to the allegations of abuse towards [D] or [C].
It seems to me that he could support the mother of the children in having a relationship with the children despite his concerns about the way in which she had allegedly influenced them. I did not have any particular concerns about his parenting although it is likely that he has not been the primary caregiver during the children’s earlier life and hence had spent less time with them in the past.”
I accept the evidence of Dr N generally and his opinions just expressed.
Time and Supervision
The ultimate resolution of the issue about time has been described by Mr M as a “fragile equilibrium” when C’s increasing maturity is balanced against his loyalty to his mother. Ms P refers to a “struggle” for C that will become “increasingly difficult” when account is taken of the potential for collision between the improved relationship with his father and the loyalty to his mother.
The evidence and findings earlier outlined point, in my judgment, to the children living predominantly with their father and the removal of the influence of Mr H.
I am not convinced, particularly in light of the evidence earlier referred to with respect to the attitude of each of the mother, and Mr H, to the father, and the evidence of Mr H in the witness box earlier quoted, that Mr H’s absence from the children could be relied upon in the absence of supervision of the mother’s time.
What is also clear is that the children have a close bond with their mother and want to see her, and see her regularly. I am told by two independent experts that the risk of emotional harm is such that I should order that supervision of time between the children and their mother, and probably (as part of that) that time between the children and Mr H, should be restricted.
Supervision of time with the mother should also be assessed in light of an order to be made that the mother ensures that the children do not come into contact with Mr H. Such an order is indicated, in my judgment, as causing little if any detriment to the children and, conversely, as beneficial in protecting them from emotional pressure and, thus, harm.
The issue of supervision requires analysis with respect to the principles which bind me and also the issues in this case.
Supervision – Principles
It should not be thought, though, that supervision is the “answer” or the “remedy” to the issues so far identified and, in particular, the risk found to attend time with the mother (and Mr H). The “remedy” offered to litigants by parenting orders is but a distant relative of remedies available to parties litigating in other jurisdictions in other courts.
This is primarily reflective of the fact that, in other jurisdictions, the resolution of factual disputes point to a remedy dispositive of the cause of action joined between the parties on the pleadings. In a parenting dispute there is no cause of action as such, and, as the High Court and Full Court of this court have each made clear, the overriding statutory obligation on this court in parenting proceedings occurs within proceedings which are not strictly adversarial. It also involves “remedies” which are not strictly dispositive of findings about facts (and values).
Moreover, the issues the subject of a parenting “cause of action” are many, varied and complex. They are deeply rooted in the psychopathology of the parents and the psychopathology of the parental relationship. And, in truth, the “remedies” provided by parenting orders are, by their nature, orders which seek to impose relationships on parents; relationships which, in many cases, one or both parents neither seek nor want. Yet, orders embody relationships, nevertheless, seen to be in the children’s best interests in the circumstances in which the particular children find themselves.
Thus, where a Court comes to a firm conclusion that a risk or risks attend the relationship which the court would otherwise prefer a child to have with each of his parents, the ordered relationship must take account of, and attempt to meet, that risk or risks.
Often, the only realistic means of doing that is by imposing a relationship between parent and child attended by supervision of it. Supervision, whilst unsatisfactory in so many ways – including in ways central to the best interests of a child - remains a means, often the only realistic means, of balancing the need for a parent/child relationship with the risks found to attend it.
That such a result is contemplated by the Act is made clear by the central emphasis given to assessments of harm to children in all aspects of the analytical process required before parenting orders are made.
I am, of course, mindful of what has been said by Full Courts in respect of supervision and the desirability of a “sunset clause”. I bear in mind, for example, what the Full Court said in C & J (1996) FLC 92-697and, in particular what was said (per Fogarty & May JJ) at 83,341-342:
“We do not consider that His Honour is correct in saying that supervised access is “never an appropriate measure in relation to final access orders”. It is unduly restrictive of his discretion in relation to children to approach the matter in that way.
The Court is given a wide range of powers in relation to children both under the previous legislation and the Reform Act. Ultimately, the determinant is the best interest of the child. That discretion should not be circumscribed by absolute rules which appear to exclude one of the otherwise available possibilities. In addition, access orders are never “final”. No doubt His Honour was fully aware of that and intended by that comment to indicate that there must be a practical end to litigation and that was determining the matter at that point for the foreseeable future. But access orders need to be moulded to the particular circumstances of the case and it may be unavoidable in a particular case to make orders for a limited period of time for orders which provide a graduated process and the potential for review depending on developments. This is especially so in the case of this sort.
…
The Court has the widest discretion to make whatever orders are appropriate in the best interests of the child by way of access or contact. Supervision is one option.”
The Full Court has also held that “… the open-ended nature of the supervision order was somewhat unsatisfactory”. (H v K [2001] FamCA 687). In W v W, (([2004] FamCA 1167) Dessau J ordered supervised time but inserted a review mechanism, rather than order that supervised time occur indefinitely. Similarly, in RG v JR ([2006] FamCA 293) the Full Court emphasised the value of inserting a review mechanism or “sunset clause” in orders:
“We accept that in many cases the effect on children of indefinite, long-term, supervised contact, particularly if such contact is to continuously occur in the children’s contact centre, may not be in a child’s best interests. (at [107])”
Despite the changes to the Act since those decisions were handed down, I respectfully consider that, provided supervision is in the particular child’s best interests as determined by reference to the statutory provisions, the statements of the Full Court remain the law.
In saying that, I do not suggest that the requirements to consider, for example, “a meaningful relationship” or the requirement to consider the willingness and ability to promote a “close and continuing relationship between the child and the other parent” or “direct contact on a regular basis” do not impact upon the consideration of whether supervised time is appropriate and, if so, for how long and in what circumstances. Obviously those considerations are relevant. Ultimately, however, the overriding determinant is the findings about best interests.
Supervision –Issues
Specifically in respect of supervision Mr M says:-
“99. The consequence of the children remaining under a supervised regime with their mother will ultimately weigh heavily on that relationship as it will unnaturally restrict any growth in the bonds between them. [C] will find it frustrating and eventually unbearable, and over a greater length of time [D] will respond similarly.
100. If supervision is lifted it is likely the children will be re-exposed to their mother and Mr [H’s] various assertions about their father, much as was the case previously. It is unlikely that there would be any compliance with orders for Mr [H] not to see the children. I think that it is probable that this will place their residence with their father under considerable stress and quickly undermine any gains which have been made. In my view, Mr [H] should never have any contact with the children.
…
102. In any situation I think it is probable that [C’s] struggle will be more extremely expressed than his sister’s. Nevertheless, the last year that he has had with his father has allowed him to view things differently than before, and hopefully this will provide him with a better compass over the long term.”
In his report dated 30 March 2008 Dr N recommended that time with the mother:-
“…be monitored so that the content of the contact is not able to be further emotionally abusive towards the children. I would therefore recommend that such contact initially be supervised and that it occur on a gradually increasing scale. I would not recommend that the contact be unsupervised for some months at least.”
In Dr N’s second report, provided almost twelve months later in February 2009, the doctor said:-
“I would still recommend that the mother have contact with the children. I would still suggest that contact be monitored so that the content of the contact is not able to be further emotionally abusive towards the children in terms of drawing them in to this dispute and alienating them from the father.
I would therefore recommend that such contact still be supervised but that it occur on a gradually increasing scale. I do not know whether to recommend that contact be unsupervised in the foreseeable future. I wonder if some more flexible supervision than a contact centre could be arranged but still protect the children from verbal over involvement in parental conflict.
I am disappointed, or even dismayed at the lack of progress that the mother and Mr [H] have made in their position and attitude which is substantially the same as twelve months previously. Neither of them appear to demonstrate any respect for the children’s need to develop and maintain an appropriate close relationship with their father. In fact, it seems likely that they continue to undermine such a relationship when they have the opportunity, even though this may not be their conscious intention.
Given this lack of progress I do not think I can provide guidance with regard to a time frame of increasing contact.”
It can be seen, then, that, if Dr N’s first report’s ultimate view was accepted, a recommendation for unsupervised time by the time of the second report might have been expected. The doctor’s second report is redolent of disappointment in the lack of change in attitude on the part of the mother and Mr H, and also redolent of a continuing need for monitoring and caution.
Dr N goes on to recognise, however, that:-
“It will certainly reach a point where it would be unreasonable to require [C] to have supervision of his contact with his mother, however I do not think that that time has yet arrived in terms of psychological maturity.”
Specifically in respect of Mr H, Dr N agrees with Mr M. The doctors says:-
“It is still not clear to me that Mr [H] plays a beneficial role in the children’s lives despite his possible good intentions. I can see no particularly good reason why they should have contact with him as I do not regard him as being a significant attachment figure in their lives. Certainly he should not be involved in any process of supervised contact and if he is coming in to contact with the children at some later point in time it should still be only after the mother has demonstrated a clear and consistent pattern of behaving in a way which protects the children’s right to develop a relationship with their father.”
Of the current nature of the relationship with the father and the children Dr N says:-
“I am encouraged by the increasing quality of the children’s relationship with the father particularly [C] although this is still vulnerable. I am also encouraged by their improved academic results over the past twelve months.”
I have had to answer for myself this question: even accepting the potential for emotional harm identified by each of the two experts, their ultimate recommendations based on their opinions in that respect, and the findings made by me earlier identified, how can it be said that ordering time with a 15-year-old at a contact centre can be said to be in his best interests?
It might be argued that whatever damage has been done has already been done and the supervision of time is unlikely to prevent further harm. Further, in that respect, it can be argued that C is finding his own way forward or, put another way, is finding a way to inure himself against the influences otherwise prevailing.
There is, it seems to me, merit in each of those arguments. However, I am ultimately persuaded that some supervised time should be ordered for two principal reasons.
First, is the evidence of Ms P. The advances made by C referred to by Ms P in her report, are, it seems to me, in their infancy. They need time to develop and to be protected, as far as possible, from malign influences. Furthermore, Ms P who, it seems clear from her report, is a person in whom C has confidence, is most concerned about the collision between the fledgling capacity to arrive at and sustain his own thoughts and judgments about his parents, with what I have assessed to be the potentially damaging desire for loyalty to his mother’s (harmful) attitudes toward, and views about, his father.
Supervision – with all its disadvantages – has the potential nevertheless to be a bulwark against malign influences and an overt sign to C that this court, at least, validates his capacity to arrive at and sustain his own judgments free of those influences.
Secondly, I am concerned by the opinion of Dr N which, as mentioned earlier, is that a need for supervision remains, despite the guarded optimism in his first report that, by now, the need for it might have abated. I, too, am somewhat despairing that the conflict and the attitudes of the mother and Mr H have not diminished and, on one view of the evidence at least, may even have become more entrenched.
That said, neither Mr M nor Dr N (nor the Independent Children’s Lawyer in submissions) suggest that supervision be limited to any period of time. Thus, absent any other order, it would continue (at least in theory) until C turns 18.
The thought of, for example, a 17-year-old seeing his mother at a contact centre with the sort of monitoring that would be required in order to meet the identified risks is, it seems to me, at least in the instant circumstances, to be plainly absurd and, moreover, antithetical to his best interests. If C is unable by then to grow and sustain his own views of his parents free of influence or to resolve what, by then, are likely to be divided loyalties, the remedy for him, in my view, lies well outside the purview of court orders.
In saying that, I do not for a moment suggest that any problems for C will be “cured” by then. I strongly suspect that C will be burdened by the vestiges of the issues discussed in these reasons for the balance of his childhood and, probably, for at least the beginnings of his adult life. But, there comes a point where his best interests are best met by recognising sufficient maturity in him and the expertise of the psychological professions and by the marrying of those two things.
It is primarily for that reason that I will order the father use his best endeavours to ensure a continuing role for Ms P with C (and if she deems it necessary, D) and to order that a copy of these Reasons be provided to her by the Independent Children’s Lawyer
Whilst I can, both on the facts in this case and by reference to principle, readily find that supervision should cease at some point, there remains an acute question: when? As Dr N, in my view correctly, pointed out, there is no definitive answer to the question. There is no “magic age” and there is no “magic time”. The balance lies in meeting the risk on the one hand and, on the other, allowing C’s increasing maturity level to take hold.
By the end of the year, C will be all but 16. D will be 12. The children will, by then, have been in the full-time care of their father for over two years. There will be a period of eight or nine months during which C will (hopefully) have had the benefit of further counselling from Ms P. These proceedings will have been concluded by the same amount of time and, hopefully, for the sake of these two children, the end of the proceedings and the findings made will allow some abatement of the conflict between parents and the pressure on the children and C in particular.
Balance the considerations to which I have referred, I propose to order that supervision conclude on the last scheduled time period of 2009.
I consider that considerations similar to those just outlined should apply to the restrictions on contact with, and by, Mr H.
Findings made with respect to the best interests of the children, bring with them indirect ramifications for the relationship between the mother and Mr H. The mother has, it seems, determined to make Mr H a long-term part of her life. That being so, the children’s relationship with their mother must accommodate – at some point consistent with their best interests – that fact. Where there is an assessed risk of emotional harm, court orders should, in my view allow for that circumstance whilst at the same time attempt to meet the assessed risk.
Just as with supervision, while so ever the mother’s relationship with Mr H continues, at some point the children’s relationship with Mr H must be confined by considerations other than court orders. Just as with supervision, the notion that, for example, a 17-year-old boy would, in the circumstances of this case, have his time with Mr H dictated by court orders seems to me to assume unreality.
An additional consideration applies to my mind, though, in respect of Mr H. That is, when, as I will order, supervision ceases, I will provide for some initial unsupervised time between the children and their mother. This should be allowed to occur, at least initially, in the absence of Mr H. Doing so, in my view, allows the predomination of the children’s (unsupervised) time with their mother, untrammelled by considerations of a (separate) relationship with Mr H.
I propose to order restrictions on other forms of communication until March next year. As will be clear, phone and mail communication has been redolent of the sort of influences to which earlier references have been made. Those restrictions, too, though, should come to an end at some point for all the same reasons.
It will be appreciated that much of the preceding discussion focuses upon C. In doing so, it is important to point out that I have not at all forgotten D’s position.
The evidence seems clear that, probably as a result both of being the younger child and her personality structure, she has not been as affected by the attitudes and influences to which I have referred earlier in these reasons. The difference in the nature of the relationship between D and each of her parents has been commented on by both experts. Ms P, having seen D for an initial four sessions, did not determine a need to see her further.
By the time D is 12, there should be the opportunity for her to see her mother outside of the confines of a contact centre and, thereafter, as she grows into adolescence, to see more of her mother. That also allows both children to have like restrictions which, absent any good reason to the contrary, I consider desirable.
Further, I consider it highly likely that her views, as she gets older, are likely to be less affected by the considerations referred to that, in my judgment, play so heavily on C’s erstwhile expressed views.
I order accordingly.
I certify that the preceding two hundred and sixty-two (262) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy.
Associate:
Date: 31 March 2009
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