WHYTE & DODDS

FEDERAL CIRCUIT COURT OF AUSTRALIA

WHYTE & DODDS

[2015] FCCA 710

Catchwords:
FAMILY LAW – Parenting – disclosure by child aged 9 suggesting sexual abuse by her paternal grandmother – where the court cannot make findings about whether sexual abuse occurred but where the mother and father agree that the child is extremely anxious and should not be brought into contact with the paternal grandparents in the immediate future or forced against her will to spend time with the father in (omitted) where the father and paternal grandparents reside – where the father agrees to spend time with the child and her younger sibling aged 5 once a month and during school holidays away from (omitted) for the time being – issue in dispute whether an order should be made for the younger sibling to spend additional time with the father in (omitted).

Legislation:

Family Law Act 1975 (Cth), ss.60CC, 61DA, 65DAA

Cases cited:
Mazorski & Allbright [2008] 37 Fam LR 518

Applicant:

MR WHYTE

Respondent:

MS DODDS

File Number:

NCC 1049 of 2011

Judgment of:

Judge Terry

Hearing dates:

21 & 22 October 2014

Date of Last Submission:

22 October 2014

Delivered at:

Newcastle

Delivered on:

30 March 2015

REPRESENTATION

Solicitor Advocate the Applicant:

Mr Curtis

Solicitors for the Applicant:

Curtis Legal

Counsel for the Respondent:

Mr Boyd

Solicitors for the Respondent:

Denise Clark Solicitors

Counsel for the Independent Children's Lawyer:

Ms Burns

Solicitors for the Independent Children's Lawyer:

Sharon Moore Solicitors

ORDERS

All previous orders regarding X born (omitted) 2005 and Y born (omitted) 2009 are discharged.
The parents shall have equal shared parental responsibility for the children.
The children shall live with the mother.
Until X has reached the age of 12 or ending at an earlier time if agreed by the parents in consultation with X’s counsellor the children shall spend time with the father as follows:
(i)on the 2^nd weekend of each calendar month during school terms from 5.00 pm on Friday until 12 noon on Sunday;
(ii)for half of the Term 1, 2 and 3 school holidays being for the first half of the holidays in even numbered years and the second half of the holidays in odd numbered years commencing at 12 noon on Saturday and ending at 12 noon on the following Saturday;
(iii)for five consecutive nights in the Christmas school holidays each year as agreed and in the absence of agreement from 12 noon on 21 December to 12 noon on 26 December in even numbered years and from 12 noon on 2 January to 12 noon on 7 January in odd numbered years;
(iv)at such additional or alternate times as may be agreed between the parties in writing or by text message.
Upon X reaching the age of 12 or from an earlier time if agreed between the parents in consultation with X’s counsellor the children shall spend time with the father as follows:
(i)on the 2^nd weekend of each calendar month during school terms from 5.00 pm on Friday until 5.00 pm on Sunday such time to be spent in (omitted) and (omitted) in alternating months;
(ii)for half of the Term 1, 2 and 3 school holidays being the first half of the holidays in even numbered years and the second half of the holidays in odd numbered years commencing at 12 noon on Saturday and ending at 12 noon on the following Saturday;
(iii)for five consecutive nights in the Christmas school holidays each year as agreed and in the absence of agreement from 12 noon on 21 December to 12 noon on 26 December in even numbered years and from 12 noon on 2 January to 12 noon on 7 January in odd numbered years;
(iv)at such additional or alternate times as may be agreed between the parties in writing or by text message.
Time for the purposes of Order (4) shall be spent in the (omitted)/(omitted) area or in some other area not associated with (omitted) as agreed by the mother such agreement not to be unreasonably withheld.
If Mother’s Day falls on a weekend when the children would otherwise be with the father the weekends shall be swapped so that the children spend the Mother’s Day weekend with the mother and the following weekend with the father.
If Father’s Day falls on a weekend when the children would otherwise be with the mother then the weekends shall be swapped so that the children shall spend the Father’s Day weekend with the father and the following weekend with the mother.
Unless the parties otherwise agree changeover for the purposes of Order (4) and for Order (5)(i) insofar as the time is to be spent in the (omitted) area shall take place at the carpark, (omitted), (omitted) and for the purposes of Order (5)(i) where time is to be spent in (omitted) and (5)(ii) and (iii) shall take place at the McDonalds Restaurant, (omitted).
Unless otherwise agreed by the mother in writing the father is restrained from permitting the children or either of them to spend any time in the company of or communicate with either of the paternal grandparents or B and is restrained from permitting any other person to facilitate or promote such direct contact or communication, and from mentioning those persons to the children.
In the event that either of the children have any contact whatsoever with the persons named in Order (10) above when they are spending time with or communicating with the father the father shall notify the mother as soon as practicable and shall advise the strategies he has adopted to ensure no repeat of such contact.
The father is restrained from consuming alcohol for 12 hours prior to and during any period he is spending time with the children.
Each parent is restrained from physically chastising either child or authorising any other person to do so.
The children shall have communication with the father each Tuesday and Sunday between 4.30 pm and 5.00 pm with the father to initiate the calls to the mother on the Tuesdays and the mother to initiate the calls to the father on the Sundays and with each parent ensuring the children are accorded privacy during the said calls.
Each parent may obtain from the children’s school copies of school reports, newsletters, order forms for school photographs and other information normally provided to parents and each parent may attend school events and extra-curricular activities normally attended by parents.
Each of the parties is restrained from denigrating the other or members of the other’s household, in the presence of the children.
Each of the parties shall notify the other immediately in the event of any medical emergency or hospitalisation involving either of the children.

IT IS NOTED that publication of this judgment under the pseudonym Whyte & Dodds is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT NEWCASTLE

NCC 1049 of 2011

MR WHYTE

Applicant

And

MS DODDS

Respondent

REASONS FOR JUDGMENT

Introduction

On its face this case involves a very narrow issue, namely whether an order should be made that a child Y aged 5 who lives in (omitted) with his mother and his sister X aged 9 should spend time with his father once a month and during school holidays in (omitted).
The underlying issues are complex however.
The parents separated in April 2010 when X was 4 and Y a baby. Shortly after separation the mother moved from (omitted) to (omitted) with the children with the father’s agreement. The father, who remained in (omitted), thereafter mainly saw the children by travelling to (omitted) and spending time with them there on weekends although he did see the children in (omitted) from time to time when the mother brought them up.
The paternal grandparents live in (omitted) and between early 2011 and January 2013 they accompanied the father to (omitted) and spent time with the children during the father’s weekend visits.
In January 2013 X made disclosures to the mother which suggested that the paternal grandmother may have been touching her in a sexually inappropriate way.
The Department of Family and Community Services (FaCS) was notified and the mother immediately arranged a face to face meeting with the father to tell him about the disclosures.
At the meeting the parents agreed that for the time being the children would not visit (omitted) and would not be brought into contact with the paternal grandparents. However a few months later the father filed a parenting application seeking orders about his time with the children and proposing no restraint on them visiting (omitted) or coming into contact with the paternal grandparents. He filed an affidavit from the paternal grandmother denying any wrongdoing.
The disclosures were referred to the Joint Investigation Response Team (JIRT) which conducted an investigation. During the JIRT interviews X made disclosures which implicated the paternal grandfather and also alleged that the paternal grandmother had touched Y inappropriately.
At the conclusion of the investigation the police determined not to prosecute anyone but they did apply for an Apprehended Violence Order (AVO) against the paternal grandmother for the protection of both X and Y. As far as I can gather this was because of aggression displayed by the paternal grandmother when informed about the allegations.
The paternal grandmother defended the application and it was listed for hearing on 17 July 2013. However on that day it was compromised on the basis that an AVO would be made for 6 months without admissions and that the paternal grandmother would give an undertaking also without admission not to attempt to communicate with or contact X for a further 18 months.
X has been engaged in counselling since the disclosures were made and is strongly opposed to spending time with the father in (omitted) and to seeing either of the paternal grandparents.
At the hearing before me in October 2014 the father did not press for an order that X be forced to go to (omitted) against her will. He said that he was happy to defer this until X was ready to do so. He also said that he was willing to keep coming down to (omitted) once a month to spend time with the children and was willing to keep both paternal grandparents away from both children but he pressed for an order that Y commence spending one weekend a month and some school holidays time with him in (omitted).
The mother is opposed to the siblings being treated differently. She proposed that the children spend one weekend a month with the father in (omitted) either until X turned 12 at which time she hoped X might be willing to visit (omitted) or until an earlier time if X’s counsellor advised that X was ready to visit (omitted). She ultimately agreed to orders for some holiday time provided it took place away from (omitted).
During the hearing the mother raised a concern about the father’s alcohol consumption but not to the point where she wanted to restrict the weekend time or the holiday time he proposed occurring.
A further complication arose prior to the hearing in that in May 2014 X disclosed to a teacher that the father’s partner’s then 16 year old son had touched her inappropriately when he accompanied the father and his partner on a visit. This has some ramifications in the proceedings but need not limit the father’s time with X in (omitted).

Evidence

The father relied on his amended application filed on 19 September 2014, his affidavit filed on 19 September 2014 and the affidavit of his partner Ms M sworn 19 September 2014.
The mother relied on her amended response filed on 24 September 2014, her affidavit filed on 19 September 2014 and the affidavit of her partner Ms T filed on 25 September 2014.
Mr N, a Regulation 7 Family Consultant, prepared a Family Report which was released on 4 March 2014.
All of the witnesses were cross-examined.
The father was a generally satisfactory witness except for the evidence he gave about his alcohol consumption.
The father told Mr N that he consumed 8 beers a night on three occasions each week which is a high level of consumption. At trial he said that he had ceased drinking at that level after the Family Report interviews but he was unable to satisfactorily explain why he had changed his drinking pattern and this evidence is somewhat suspect.
The father’s partner Ms M was a generally satisfactory witness although she made some admissions which I shall refer to later which did not help the father’s case.
The mother was a good witness. She was very calm and reasonable. She commented at one stage “I’m trying to be fair” and I accept this. There was absolutely nothing to suggest that she was intent on alienating either of the children from the father or putting unreasonable impediments in the way of them having a relationship with him.
The mother’s partner Ms T was a calm and consistent witness.

Background

The mother was brought up in (omitted) and the father in (omitted). They met in (omitted) in 1996, commenced cohabitation there in 1997 when they would both have been about 19, married in 2002 and were still living in (omitted) when they separated on 9 April 2010.
The parties have two children, X born on (omitted) 2005 and Y who was born on (omitted) 2009.
Very shortly after separation the mother relocated to (omitted) and the father began travelling to (omitted) once a month to spend time with the children for the weekend. He stayed with the maternal grandmother who was happy to put him and the children up.
In July 2010 the mother commenced living with her current partner Ms T and in September 2010 the father commenced a relationship with his current partner Ms M.
Ms M has two sons; A aged 18 and B who has just turned 17. A lives with the father and Ms M in (omitted) and has done so throughout their relationship. B however lives with his grandmother in (omitted). He spends time with the father and Ms M on some weekends and during the school holidays.
In late 2010 the father ceased staying with the maternal grandmother when he came to (omitted). During the hearing the mother asserted that this was because the maternal grandmother became sick of the father going out to clubs and going fishing instead of spending time with the children and stopped allowing him to stay with her. The father said that it was because he was sick of what the children were being exposed to as a result of the maternal grandmother’s behaviour with males at her home and he declined to continue staying there. The maternal grandmother did not give evidence and I cannot make any findings about where the truth lies about this and nothing turns on it.
From about late 2010 or early 2011 the father began staying in a cabin at a caravan park when he came to (omitted) and at this point the paternal grandparents Ms L and Mr M and his partner Ms M began accompanying him.
The mother alleged that during 2011 the father only came to (omitted) on three occasions. The father gave the impression that his visits were monthly and neither party commented on the frequency of the visits in 2012. The best I can say is that during 2011 and 2012 the father continued to see the children in (omitted) either once a month or less frequently and that occasionally during this period the mother left the children with him for the weekend in (omitted) when she travelled to (omitted).

The disclosures

In the mother’s mind the events of January 2013 had their beginning in a parent/teacher interview which occurred in late 2011. X’s teacher told the mother that X was touching her genital area on a frequent basis and suggested that X be required to wear shorts under her tunic.
The mother said that she was embarrassed but not concerned because she had seen X doing that sort of thing occasionally at home and thought that X was just going through a stage.
In the second half of 2012 Y began displaying some sexualised behaviour, trying to touch his sister’s genitals and displaying his penis. Again the mother thought that it was simply children going through a stage and she stopped allowing the children to bathe or shower together.
In January 2013 X ran through the living area after a bath and Y ran after her and touched her genital area. The mother said that the same thing had happened two days earlier and on this occasion she reprimanded the children and asked X if anyone had been touching Y.
The mother said that X replied with words to the effect of:
No Mum but Nanny touches me.

The mother responded:
Have you told her you don’t like it? Tell her to stop. You’re a big girl now and nobody touches you there, it’s private.

The mother said that at this point she did not suspect any inappropriate behaviour and thought that X was referring to the paternal grandmother touching her while drying her after a bath or similar.
Not long afterwards the father, the paternal grandparents and Ms M came to (omitted) and spent the weekend with the children.
The mother said that shortly after this visit she and the children and her partner Ms T were sitting at the kitchen table on Sunday night having dinner when X said words to the effect of:
Nanny did that thing to me again!
I said:
Did you tell her to stop?
She replied:
I told her to stop. I said I was 7 and she couldn’t touch me there but Nanny just laughed and said she wouldn’t stop![1]
[1] Mother’s Affidavit, paragraph 13.
The mother went on to say as follows:
X was sitting next to Ms T (opposite me) and I asked X to demonstrate on Ms T’s arm what Nanny was “doing”. X used two fingers to rub Ms T’s arm in a circular motion. She said, “Nanny does it on that bit on the outside” (indicating her vaginal area). X then became upset and started to cry. I comforted her and told her that I would not let it happen to her again.[2]
[2] Mother’s affidavit, paragraph 14.
Ms T gave a similar, although not identical, description of what happened on that occasion.
The mother and Ms T both said that they were at a loss as to what to do but the following day the mother rang the Community Services Helpline. She was contacted by JIRT a few days later and they put in train an interview with X.
On the weekend following the disclosure the mother and her partner drove to (omitted) to see the father in person and tell him about the disclosures. The mother did not tell the children that she was going to (omitted) and did she take them to (omitted) with her.
The mother said that the father was shocked by what she told him but said as follows:
It all makes sense now! We thought something was odd because she doesn’t like to stay with Mum and insists on sleeping in our room!
The mother was a good witness and I accept her evidence.
The mother had been due to take the children to (omitted) in February 2013 to spend time with their father in accordance with a previous arrangement with the father. She told him that she was still willing to bring the children up to see him on the proviso that there be no contact whatever with the paternal grandparents.
The mother said that the father informed her that he could not necessarily guarantee that the paternal grandparents would not drop in at the house or that he and the children would not run into them in the street and he offered to come to (omitted) to see the children instead.
X was subsequently interviewed by JIRT officers and the paternal grandmother was also spoken to.
The records of the Department of Family and Community Service (DOCS) contain the following comment about the paternal grandmother:
Ms L’s (POI) aggressive and combative attitude when speaking with JIRT about the allegations is also important to note. Especially considering Ms L made a physical threat stating “if I get my hands on Ms Dodds will kill her”, even when she was cautioned by DSC (omitted), Ms L continued to be aggressive when speaking about Ms Dodds. If Ms L struggled to control and contain herself when speaking with a Police Officer, it could be predicated that Ms L may have difficulty not expressing this negative attitude when interacting or speaking with X and her younger brother, Y should future contact occur.[3]
[3] Exhibit I.

The mother said that following the disclosures and the JIRT interview, X became extremely anxious and withdrawn and was referred to Kaleidoscope at (omitted) for counselling. It was not in dispute that the mother told the father about the proposal that X attend counselling and he agreed that she should do so.
The mother was informed by JIRT that the allegations were substantiated but that a decision had been made not to proceed with a prosecution. The mother said that she was comfortable with this decision as she did not want X to be placed under any pressure or strain. However the police decided to apply for an AVO against the paternal grandmother for the protection of X and Y.
The father came to (omitted) on the weekend of 23 March 2014 to spend time with the children. The mother said that X was extremely frightened prior to the commencement of the visit that the paternal grandmother might attend.
The father collected the children on the Saturday morning but X became ill and upset during the night and the father arranged to return her to the mother in the early hours of Sunday morning. The mother took X back to the father at 9.00am on Sunday and she spent the remainder of Sunday with him.
The paternal grandmother defended the application for an AVO and the matter was listed for hearing in Newcastle on 17 July 2013.
On 4 July 2013 the father and Ms M gave statements to the paternal grandmother’s solicitor for use in the AVO proceedings. In their statements they described in detail the events of the weekend prior to X making her disclosure and asserted that nothing untoward had occurred between the children and the paternal grandmother.
The father and Ms M attended Court in Newcastle on 17 July 2013 as witnesses in the paternal grandmother’s case.
X was required to give evidence as well and the mother said that she was distraught at the prospect. The mother said that X initially refused to get out of the car at the court house and had to be forced out and she was carried into the building past her father and paternal grandmother with her head buried in her mother’s shoulder.
Ultimately a deal was brokered to the effect that a six month AVO would be made without admissions and the paternal grandmother would give an Undertaking to stay away from both children for a further 18 months and X was not required to give evidence.

The proceedings in this court

The father filed his application in May 2013 and on 8 July 2013, the first return date of the father’s application, an interim order was made providing for the father to spend time with the children once per month in (omitted). Orders were also made for telephone communication and for the paternal grandparents to be excluded from having any contact or communication with the children. This has continued to the present time.
A family report was prepared by Mr N in February 2014. X was still undergoing counselling and was expressing a strong wish not to go to (omitted) and Mr N recommended that X’s wishes be respected and that for the immediate future the father spend time with both children in (omitted).
The father did not accept this outcome and the matter was listed for hearing in October 2014.
In May, X made a disclosure to her teacher at school about some conduct by Ms M’s then 16 year old son B who had come to (omitted) with the father and Ms M.
The teacher said that X told her that when she had a bath B came into the bathroom and told her to get out. She said she wanted to dry herself but B said “not yet” and touched her “downstairs on my privates”. The teacher asked X whether there was another adult that she could go and see and talk to and X said “no, they were outside looking for rabbits”.
This disclosure was reported to JIRT although it is unclear to me why nothing occurred in relation to it until August 2014 when the parents were asked to attend a meeting with JIRT officers at (omitted). Both parents said that the father was told that he could promise to keep B away from X or JIRT would proceed with an investigation.
The father told police that he did not want the matter investigated and was prepared to ensure that B was not be brought into any contact with X. However for some reason which is unclear an agreement was also reached that Ms M would not be brought into contact with X. The father and mother both said that the police had required this. The father did not suggest that the mother had insisted on it.
When the hearing commenced in October 2014 the father was coming to (omitted) on his own to spend time with the children and it appeared to be the case that the allegations against B were still under investigation.

The meaning of the disclosures about the paternal grandparents

The case before me was run on the basis of an acceptance by both parents that X, who is still in counselling, was strongly opposed to going to (omitted) let alone seeing either of her paternal grandparents and that to force her to do so would be psychologically damaging for her.
I cannot make any finding about what X’s disclosures mean. The mother said that JIRT had “substantiated the allegations” but I could not place any weight on this even if I could be sure what it meant and the hearing before me was not run in a way which invited or indeed allowed an inquiry into the substance of the disclosures. Some material was tendered from the JIRT investigation but not necessarily all of it and neither of the paternal grandparents gave evidence.
It would be unsafe for me to find that the paternal grandmother acted in a sexually inappropriate manner toward X nor can I make a finding about whether the paternal grandfather had any knowledge of things the paternal grandmother was doing nor can I make a finding about whether the paternal grandmother touched Y’s penis, a disclosure that apparently emerged during the JIRT interviews.
It is important to note however that there was nothing to suggest that the mother gave any false evidence in the proceedings or that X’s disclosures were orchestrated by the mother.
The paternal grandmother forcefully expressed the view after she was informed of the disclosures that the mother was behind them and that she was acting out of spite because the paternal grandmother had expressed strong disapproval of the mother forming a same-sex relationship. However the paternal grandmother voiced this disapproval shortly after the mother and father separated which was nearly three years before the disclosures. The father and the paternal grandparents thereafter spent time with the children uneventfully and no new critical event occurred close to the time of the disclosures which might have motivated the mother to orchestrate them or to give false evidence.
The mother was a very credible witness and I accept her evidence about the events leading up to the disclosures and about the disclosures themselves.
The mother dealt very calmly and sensibly with the children’s sexualised behaviour when it first emerged. She did not leap to the conclusion that it had anything to do with the father or the father’s household and put it down to engaging in exploratory behaviour.
The mother was very slow to form a suspicion that X had been abused, let alone abused by the paternal grandmother. My impression is that she and Ms T viewed the disclosures as an unwelcome complication in their lives which they struggled to know how to deal with rather than as something to be seized on with glee as an excuse to exclude the father and paternal grandparents from the children’s lives.
When the disclosures were made in January 2013 the mother did not telephone the father and dump the news on him in an hysterical or accusatory manner rather she drove all the way to (omitted) to talk to him in person.
The mother has dealt very appropriately with X’s need for counselling and reassurance in her home and the evidence given by Ms T about the arrangement she and the mother made to have a dummy security camera installed in the home is an example of that.
The father is in an unenviable position. He has always been close to his parents and he loves his children and his loyalties were torn after X’s disclosures and he must have felt himself under further pressure after X’s disclosure about his partner’s 16 year old son.
The mother is also in an unenviable position. I am satisfied that like the father she has found the disclosures and the aftermath of them difficult to deal with.
It is regrettable for the whole family that there is no way of getting to the bottom of what the disclosures about the paternal grandparents mean but I cannot give the parties any closure in that regard. The allegations concerning B were still under investigation at the time of the hearing before me.

The children’s best interests

Any orders I make about the children must be orders determined by treating their best interests as the paramount consideration and S.60CC(2) and (3) of the Family Law Act 1975 set out the matters to which I must have regard in order to determine their best interests.
I intend to make findings about the additional considerations in s.60CC (3) first and then consider the primary considerations in s.60CC (2).
The first of the additional considerations is any views expressed by the children and any factors (such as the children's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the children's views.
Mr N said as follows about X:
When I asked X if she had a magic wand how she could make her life better, she replied by saying “I wouldn’t see dad, Ms M (Ms M), Mr M and Ms L (the paternal grandparents), I’d only see good people like mum and Ms T”.[4]
[4] Family Report, paragraph 77.

Mr N observed a reasonable interaction between X and the father and Ms M during his observation session for the Family Report interviews however and the mother did not suggest that X was actively resistant to spending time with the father at present. I cannot place any weight on X’s statement that she would prefer not to see the father at all.
However it was accepted by the mother and the father that X was opposed to going to (omitted) and strongly opposed to seeing the paternal grandparents.
Mr N did not interview Y separately because of his age.
The father asserted that Y said to him from time to time that he would like to go to (omitted) to spend time with the father.
There was no evidence that Y had a view on which weight could be placed. Y has spent very limited time in (omitted) and has never spent anything other than very brief periods of time with the father in the absence of his sister. There is force in the mother’s opinion that he probably does not have enough understanding of the situation to make an informed choice.
The next additional consideration is the nature of the relationship of the children with each of their parents and any other persons including any grandparents or other relative of the children.
X has a good relationship with her mother. The father did not dispute this and X said as follows to Mr N:
Following her parents’ separation, X indicated that she lived with her mother who subsequently commenced her relationship with Ms T. X was clear to say that she feels “heaps better” living with her mother and Ms T, indicating that there is “no yelling”. X described her mother as being “beautiful, a nice mother”. She elaborated by saying that Ms Dodds provides her with good food as well as a great deal of physical affection. She indicated that her mother used to read her stories, but that X now reads to her as part of her homework. X went on to say that her mother plays games with her…[5]
[5] Family Report, paragraph 70.
X also has a good relationship with Ms T. Mr N commented that:
… she was equally positive about her relationship with Ms T, whom she described as “nice and friendly”, being adamant that she “feels safe” living with her…[6]

[6] Family Report, paragraph 70.

X was less positive about her father during the interviews with Mr N. She said that she received cuddles off Dad but that normally he yelled a lot.
The mother gave evidence which I accept of occasions since the disclosures where X had expressed fear about going to spend time with the father and several occasions where she had asked during the night to go back to the mother and the father had facilitated this occurring.
Mr N commented that during the observation session the father communicated with both children in a nurturing manner and that the children hugged him on departing from the observation room.
There may be some issues in X’s relationship with the father which may arise out of his actions in supporting the paternal grandmother when she contested the Apprehended Violence Order but may have some additional or alternate underlying cause. However X is not overall resistant to spending time with her father.
The mother is Y’s primary carer and primary attachment figure.
The mother did not raise any significant concerns about the father’s care of Y or his relationship with Y and I accept that the father has a good relationship with Y. Mr N observed a satisfactory interaction between Y and the father during the observation session.
Ms M has been in the father’s life since shortly after separation and the children have had frequent contact with her. They interacted reasonably well with her during the observation session. However it is likely that similarly to the situation with the father X’s relationship with Ms M is more complicated than Y’s.
X has complained about Ms M accusing her of making up the allegations about her paternal grandmother. Ms M denied during the hearing that she had done this but she made it clear during cross-examination that she did not necessarily accept the truth of X’s disclosures. I consider it quite possible that in the difficult situation within the family Ms M may have said things which have made X uncomfortable, and the disclosures about B will not have done anything to improve Ms M’s attitude to X.
X’s relationship with Ms M does not appear to be close and they may have some issues.
Little evidence was given about the relationship between X and Y but they have lived together for their entire lives and are accustomed to spending time with the father together.
The next additional consideration is the extent to which the children’s parents have taken or failed to take the opportunity to participate in making decisions about major long-term issues in relation to the children, to spend time with the children or to communicate with the children.
The mother said that during 2011 the father only saw the children on a few occasions. The father did not concede this and I can make no findings about it. I am satisfied that each parent has been keen since separation to spend time with and communicate with the children and be involved in decision making in relation to them.
I must consider the extent to which each of the children’s parents has fulfilled or failed to fulfil their obligations to maintain the children.
Child support was not raised as an issue in the proceedings.
I must consider the practical difficulty and expense of the children spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the children’s right to maintain personal relations and direct contact with both parents on a regular basis.
The mother lives in (omitted) and the father in (omitted). The two locations are about 3 ½ to 4 hours driving distance apart.
It is expensive for the father to see the children in (omitted). He estimated, and he was not challenged about this, that it cost him about $1,000.00 a weekend when the cost of travel, accommodation for himself and his partner and the expenses of food and activities for the children were taken into account. The father’s partner loses weekend work as well so the trip to (omitted) has an additional financial impact for the father’s family.
The father did not directly say that the fact that he had to travel to (omitted) to see the children was the reason he was only seeing them once a month at present but it could well be the case.
I must consider the capacity of each of the children’s parents and any other person including grandparents of the child to provide for the needs of the children, including their emotional and intellectual needs.
The father is in many respects a good role model and good parent for the children. He has a good employment history. He does not suffer from any mental health issues or use drugs and he has no criminal convictions. The mother did not allege that the children were neglected or poorly looked after when they spent time with the father.
The mother alleged that during the relationship the father drank heavily and was drunk about four nights a week. She said that she was concerned about the father’s alcohol consumption prior to separation and still harboured some concerns. She did not put this forward as a reason to restrict his time with the children in (omitted) prior to the disclosures and if it had anything to do with a regular regime of the children visiting the father in (omitted) failing to evolve prior to the disclosures nobody told me about it.
The father Mr N in February 2014 that during the relationship he consumed eight beers a night on approximately three occasions each week. He believed that he was only intoxicated on a handful of occasions in any twelve month period but this is quite a high level of drinking so while the father may not see it this way there could be some strength in the mother’s claim about the father being drunk up to four nights a week during the relationship.
The father told Mr N that he currently only drank once a week at which time he drank eight beers.
The father said in evidence at the trial that he no longer drank at all when the children were with him. The mother did not accept this and said that she believed as a result of things which she had heard that the father did drink with other family members while spending time with the children.
The mother said that she was concerned that if the children needed attention during the night or needed to be driven somewhere the father would not be able to do it and maintained that on the occasion in March 2014 when he delivered X to her in the early hours of the morning she was concerned because she smelt alcohol on his breath.
The father’s admitted level of drinking in the past seems high and although he alleged that it had reduced since the Family Report interviews in 2014 he did not provide any detail which would allow me to be satisfied that this was in fact the case. Nevertheless it appears to be the case that the father can abstain from drinking for periods of time and he has no drink driving convictions. The evidence about the father’s alcohol consumption would not justify refusing to allow Y to visit him in (omitted) when the issue could be dealt with by an order that he not consume alcohol while the child was with him.
The other issue of concern about the father is his capacity to provide for X’s emotional needs.
When the father was first informed of the disclosures he offered the X and the mother unconditional support. However he subsequently signed a statement to assist the paternal grandmother to defend the application for an AVO and while he said nothing critical of X he set out the events of the weekend prior to the disclosures and alleged that nothing untoward had occurred.
The father was at court by the side of the paternal grandparents when X was brought into the Court House in a state of extreme distress to give evidence at the AVO hearing in July 2013.
It not unnaturally seemed to the mother and must have seemed to X that the father was supporting the paternal grandmother in preference to supporting X.
The father agreed during cross-examination that he had not thought through the implications of signing the statement. He tried to pass it off by saying that he was not questioning the truth of X’s disclosures but was simply saying that he had not observed anything untoward on a particular weekend but this is too sophisticated for a child to appreciate.

The father has more recently been very supportive of X. He has taken steps since the release of the Family Report to engage in personal counselling to help him to understand what X is going through and to appropriately deal with any issues which might arise while she is in his care and that is to his credit. The father’s capacity to provide for X’s emotional needs however is somewhat blunted as it was apparent during cross-examination that he struggled to see that supporting his parents in 2013 may have looked like a betrayal to X.
The father is of course in a very difficult position. He has a close relationship with his parents and if he had refused to give a statement in the AVO case it might have been interpreted by them as an implicit acceptance by the father that the paternal grandmother had done something wrong.
The father is also in a difficult position because no positive finding has ever been made nor can they now be made that the paternal grandmother abused X.
During cross-examination Ms M took a somewhat different line to the father. She disagreed that she and the father were initially sympathetic to the mother when she told them about the disclosures in January 2013 and said that they simply listened and were in a state of shock.
When asked during cross-examination if she thought X was making it all up Ms M responded “I don’t know” and said that she was unsure if the allegations had come from X.
X recently told her mother that Ms M had said that she was a naughty girl for making allegations against Nan and needed to apologise. Ms M denied saying such a thing and it would be unsafe for me to conclude on the balance of probabilities that she did given that the mother’s remarks are second hand hearsay and things can be distorted and retold inaccurately as they pass from person to person. However given Ms M’s attitude to the allegations I do have some reservations about her capacity to fully support X in an appropriate manner.
The allegation X made to her teacher about Ms M’s son B is likely to make it all the more difficult for Ms M to relate well to X especially if no positive finding is made about this allegation one way or another.
This gives rise to a level of concern about how X will cope with spending any lengthy periods of time with the father given that he is invariably accompanied by Ms M when he comes to (omitted) to spend time with the children.
I am satisfied that the mother has a very good capacity to provide for the needs of the children. There was some suggestion in the father’s affidavit that she may at some point have harshly punished Y but I cannot make a finding that this is so based on a couple of reported remarks by X. Mr N observed nothing untoward in the interaction between the mother and Y at the Family Report interviews.
The mother has been appropriately supportive of X since the disclosures.
The mother’s counsel submitted that the court must have regard to the effect on the mother of an order that the siblings be separated and that Y spend time with the father in (omitted) but there was no evidence directly bearing on this issue and I cannot assume that because the mother does not support this outcome making such an order would affect her parenting capacity.
I must consider the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the children and of either of the children's parents, and any other characteristics of the children that the court thinks are relevant.
X is still undergoing counselling and Mr N spoke to her counsellor in the course of preparing the family report. The counsellor does not support X being made to travel to (omitted) or being brought into contact with the paternal grandparents.
Y is a male child. He lives in an otherwise all-female household. There is no maternal grandfather and no maternal uncles who are part of the mother’s circle and could be male role models for Y and the father said that he considered it important that Y have regular exposure to a male role model.
The father referred in his affidavit to an incident which apparently occurred at the mother’s home but which the father seemed to know about where Y dressed up in work boots and a dress. The mother expressed the view that this was a passing phase but it is obviously something which troubles the father. He perceives a benefit in Y spending regular time with him during which he will model appropriate adult male behaviour.
There is some merit in this not because of the issue of the work boots and the dress but simply because Y will benefit from spending time with his male parent who is likely to involve him in different activities and expose him to different attitudes.
Y will of course be seeing the father regularly regardless of whether he sees him in (omitted) or (omitted) but the father emphasised that if Y visited (omitted) he could offer him a much greater range of activities including quad bike riding.
I must consider the attitude to the children and the responsibilities of parenthood demonstrated by each of the children’s parents.
The mother and to a large extent the father have both displayed a very good attitude to the children and the responsibilities of parenthood.
I must consider any issues of family violence.
There was no suggestion that there had ever been any violence between the parents.
I must consider the existence of any family violence order.
There is no family violence order currently in place. The paternal grandmother’s undertaking is current until July 2015.
I must consider whether it is preferable to make the order least likely to lead to further proceedings.
The parents did not rush to court after separation and I would be hopeful that they would not need to come back to court again after a decision is made in the current proceedings, but the situation is fragile because of the impossibility of the meaning of X’s disclosures about the paternal grandparents being resolved and the conflicting loyalty demands on the father.
I must consider any other relevant fact or circumstance.
The father has a large extended family in (omitted). In addition to his parents he has a brother and sister in-law who have two young children and he has something like 23 cousins in the (omitted) area.
If X and Y never spend time with the father in (omitted) they will have limited contact with this very large extended family.
The mother does not have a good relationship with the maternal grandmother who lives in (omitted). The relationship seems never to have been close and it has not been improved in recent times by the fact that the maternal grandmother does not approve of the mother’s same-sex relationship.
Relatives of the mother live in (omitted) including her grandmother, the children’s great-grandmother, with whom the mother gets on well. The children are unlikely to have much time with them either if they do not visit (omitted).
The other relevant fact or circumstance is the potential affect on the sibling relationship if Y travels to (omitted) to spend time with the father and X is left behind.
Mr N was of the view that if Y travelled to (omitted) without X one of two things could happen or perhaps both of could happen.
First, the relationship between the siblings could be fractured and in Mr N’s opinion the sibling relationship needed to remain intact and to be strengthened rather than put under strain.
Second, X could be brought under pressure to travel to (omitted) earlier than she is otherwise ready to do so. The risk of this happening is perhaps heightened by the fact that one of the reasons the father gave for pressing the issue of Y travelling to (omitted) was that if X saw that Y was having a good time then her opposition to coming to (omitted) herself might be weakened.
It would be detrimental for X’s psychological well-being if she felt torn about maintaining her position of not travelling to (omitted) and it would be unfortunate if she felt pressured to go there too early and then had some inadvertent contact with the paternal grandparents before she was ready.
The paternal grandparents and the father have had a close relationship in the past. The paternal grandparents were in the habit of calling around to the father’s home regularly and he was in the habit of ringing them several times a week. It is open to question whether the father could prevent them coming to his home if they decided to force the issue and they are not sympathetic to X’s position and the other problem is that there is a high risk of accidental contact at family gatherings or simply in the street as the father himself recognised in January 2013.
I must now consider the primary considerations in s.60CC (2) which are:
i)the benefit to the children of having a meaningful relationship with both of the children’s parents; and
ii)the need to protect the children from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.
If X and Y only see the father in (omitted) once per month and for limited periods during school holidays, which is all he can afford if he has to do all of the travelling, the father’s involvement in the children’s lives will not be extensive. He can have fun with them and do activities with them on the two days and two nights a month he sees them but he will not be able to do any caring tasks for them except occasionally and will not be able to help with their homework and they are unlikely to turn to him as their first port of call if they run into any difficulties at school or with friends or similar.
The children’s relationship with the father can still be meaningful, insofar as meaningful is defined to mean significant, valuable and important to the children[7] but it will not be a relationship of anything rivalling the importance of the mother’s relationship with the children.
[7] Mazorski & Allbright [2008] 37 Fam LR 518.
The father felt that if he was only able to see the children in (omitted) they would view him simply as a person who dropped into their lives and had fun with them for a limited period and then went home again. He accepted at the hearing that because of X’s anxieties he could not change anything for the time being as far as X was concerned but he did feel that an opportunity existed for him to improve on the situation with Y.
It is important to note however that even if the children did travel to (omitted) the father’s relationship with them would still be of a similar nature. He will still not be able to visit their school unless he makes a special trip or takes part in homework or extra-curricular activities with them.
The advantage to the children of being able to spend time with the father in (omitted) would not be in terms of them having a more meaningful relationship with him but in terms of the father being able to do a greater range of activities with them because of the equipment and items kept at his home, to do it with a greater level of comfort than if he has to see them only in the somewhat sterile environment of a cabin or a motel room and to involve them in activities with his extended family.
It is not open to me on the evidence to be satisfied on the balance of probabilities that Y would be at unacceptable risk of harm if he was brought into contact with the paternal grandparents.
There was nothing to suggest that even if the allegations X made concerning B had substance that the risk to X could not be managed by a restraint on X being brought into contact with B and nothing to suggest that B poses any risk to Y and in any event B does not visit the father’s home often.

Parental Responsibility

Pursuant to s.61DA of the Family Law Act1975 I am obliged to apply a presumption that it is in the children’s best interests that their parents have equal shared parental responsibility for them, absent a finding that one of the parents or a person living with one of the parents has engaged in abuse of the children or family violence.
The presumption does not apply if the Court considers that it would not be in the children’s best interests for it to apply.
The presumption applies and the parents agreed that they should have equal shared parental responsibility and that is the order I will make.

Conclusion

An order for equal shared parental responsibility requires me to follow the path through s.65DAA of the Family Law Act 1975 and consider whether equal time or substantial and significant time would be in the children’s best interests and reasonably practicable and if so to consider making an order of that kind.
That is shortly disposed of in this case because the parents live too far apart for equal time or substantial and significant time to be reasonably practicable.
There was no dispute that the children should continue to live with the mother and should continue to spend time with the father in (omitted) on one weekend per month and it was agreed that an order should be made that X travel to (omitted) either when she was 12 or at an earlier time if her counsellor decided that she was ready to do so.
As I observed during submissions the position the court is in as regards X and her contact with the paternal grandparents and time in (omitted) is as follows:
i)She (now) believes that something untoward happened to her and this, and possibly the fallout of the January 2013 disclosures, is causing her extreme anxiety;
ii)She has been undergoing counselling since making disclosures;
iii)No evidence was given at the hearing which would allow me to make findings about where she is at in terms of dealing with her issues;
iv)I cannot afford to destroy X or push her beyond her limits and the parents agree that no risk should be taken in that regard.
The only issue in dispute at the end of the hearing was whether Y should travel to (omitted) on one weekend each month and during school holidays to spend time with the father.
There is a lot to be said for Y spending more frequent time with the father than once each month. He is a young boy and he does not have any other male role models in his life; the mother is in a same-sex relationship and is estranged from her brothers. Regardless of whether there is anything for the father to be concerned about in respect of Y dressing up there must be a benefit to Y in having a father as well as a mother in his life, and if he only sees the father once per month, which is all the father can afford if the time has to be in (omitted), then Y’s relationship with the father while it can still be meaningful may well become quite attenuated.
Y would be able to do a greater range of activities with the father in (omitted). In (omitted) the father has access to various items such as quad bikes which he and Y could use together. Another advantage of Y going to (omitted) is that he will gradually get a sense of the fact that he is part of a very large extended paternal family. Y left (omitted) when he was less than 1 year old and unless he is able to visit (omitted) regularly he is unlikely to form much of a relationship at all with his large extended family.
Y would also have the opportunity if he travelled to (omitted) to have some contact with the maternal relatives who live there.
I am confident that the father would do his utmost to comply with any restraint that he not bring Y into contact with the paternal grandparents if it was made because to do otherwise would risk his time with his son being permanently restricted to (omitted) or even to it ceasing altogether.
The mother is concerned about the father’s alcohol consumption and it is an issue of some concern but the father does not drink every day and there is reason to suppose that he would be able to comply with an order that he not drink while Y was in his care.
However one of the disadvantages of an order that Y alone travel to (omitted) is the wedge that it would drive between Y and X. They have lived together all their lives and for the last four years have always gone on visits to the father together. Y would not have any real knowledge about the disclosures and if he had a good time in (omitted) he would find it difficult to understand why X was refusing to visit (omitted) and might come to blame her for family disharmony.
A second issue is that Y is only five and he might find it difficult to understand and might become anxious about why he was going to (omitted) to spend time with the father while X was not although it might be that the father would be able to settle him.
A third issue is that it is likely that X would find this very difficult and might even feel that she was being punished for her disclosures to the mother.
A fourth issue is that Y might be used to put pressure on X to agree to visit (omitted) before she was ready. The father said that he would not do this and he might not do it deliberately but Ms M is not as understanding of X’s situation as the father and whether the father intends it or not this pressure could be placed on X.
A fifth issue is that inadvertent pressure might be placed on X if this order was made because she might feel anxious about Y going to (omitted) on his own.
Mr N was strongly of the view that it was undesirable for the siblings to be split in this way and that it could well damage their relationship.
Although it is not an ideal outcome for Y it would not be in the best interests of either child to make an order which meant that Y was going to (omitted) to spend time with the father while X remained in (omitted).
I intend to make orders that the children continue to spend time with the father on one weekend each month during school terms from 5.00 pm on Friday until 12 noon on Sunday in the (omitted)/(omitted) area or in some other area not associated with (omitted) until X turns 12 or until the parents in consultation with X’s counsellor agree otherwise. The mother initially proposed that the time be during the day only but at the end of the hearing in my view wisely agreed that the time should be overnight. There have been occasions when X has been unsettled at night in the father’s care but he has invariably been responsive to X’s distress and arranged for her to go back to the mother when necessary.
I also intend to make the orders about holiday time proposed by the father which was the outcome supported by the Independent Children’s Lawyer and not opposed by the mother.
Upon X turning 12 or the parents agreeing otherwise at an earlier stage time in (omitted) should begin. There is no magic of course in the age of 12. The mother came up with it in an effort to be reasonable, but I am confident that the parties will be able to sort something out if issues still remain for X in three years time.
The mother sought an order that if the children were spending time with the father and became unsettled and the father could not settle them he was to give the mother the option of collecting that child early. I do not intend to make that order because the father has always shown himself to be entirely responsible and responsive in this regard.
The allegations about Ms M’s son B remain unresolved but it was agreed that an order should be made that B not come into contact or have any communication with X. B has only met X on a couple of occasions and lives mainly with his maternal grandmother in (omitted) so it will not create any difficulties for the father and protects both X from any risk of harm if there is such a risk and B from further allegations and is entirely sensible and was agreed to by all parties.
The mother sought an order that if the father failed without prior notice to attend two consecutive visits his time with the children would be suspended pending further written agreement or Court orders. I do not intend to make that order as it has the real prospect of the matter returning to Court sooner rather than later.
If the father does start missing visits, and the mother feels that this has gone on for too long and that simply resuming the time would not be in the children’s best interests then she may have to make an application to the Court to vary the orders but to make the kind of order proposed is in my view too restrictive.

The mother sought an order that when the children were with the father he must ensure that they attend such sporting or social events falling during his time of which he had been given reasonable notice.
I would like to think that the father would take the children to any sporting events but the term “social events” is too broad and making such an order could result in the father frequently missing out on time with the children. The father will only be spending time with the children once per month and during school holidays and it is important that this time is not unduly interrupted.
The best outcome for these children and the best hope for some reparation between all parties in future will be if both parents and the paternal grandparents and Ms M accept the orders which have been made and allow a situation to develop where the disclosures are something in the background and are not the centre of everyone’s lives.
The Independent Children’s Lawyer proposed a notation requiring the parties to attend on X’s counsellor to consider the issue of when X was ready to travel to (omitted). I do not intend to make this notation because I do not consider it necessary.
For all of the above reasons the orders of the court will be as set out at the beginning of this judgment.

I certify that the preceding two hundred (200) paragraphs are a true copy of the reasons for judgment of Judge Terry

Associate:

Date: 30 March 2015

[2015] FCCA 710

30 March 2015

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Injunction