WINTERS & WINTERS

[2014] FamCA 216

FAMILY COURT OF AUSTRALIA

WINTERS & WINTERS [2014] FamCA 216

FAMILY LAW – CHILDREN – With whom a child lives with – With whom a child spends time with – Abuse and Family Violence – Best Interests of the Child – Where interim orders in the best interest of the children – Where there is a realistic prospect of rehabilitation of the parties’ communication – Where child 1 was living with the father and child 2 with the mother – Where mother lives with the maternal grandmother in an environment which represents a real risk of physical and/or emotional harm to the children – Where ordered mother to obtain alternate accommodation and court noted if unable to obtain alternate housing such would substantially determine the ultimate outcome of the proceedings – Where Child 1 presents impaired attachment with the mother which is in need of repair – Where father exerts behaviour of interrogation upon the child upon return from mother’s care – Where ordered both children to live with the mother for the first 6 months of the order and for the father to have supervised time – Where mother to have sole parental responsibility for the children.

Family Law Act 1975 (Cth) ss 60CA, 60CC, 61DA, 65DAC

Goode & Goode (2006) FLC 93-286

APPLICANT: Mr Winters

RESPONDENT: Ms Winters

INDEPENDENT CHILDREN’S LAWYER: Ms Meade

FILE NUMBER: TVC 320 of 2013

DATE DELIVERED: 3 April 2014

PLACE DELIVERED: Townsville

PLACE HEARD: Townsville

JUDGMENT OF: Tree J

HEARING DATE: 2, 3, 4, 6, December 2013; 18 and 28 February 2014

REPRESENTATION

THE APPLICANT

COUNSEL FOR THE RESPONDENT:

In Person

Mr Pack

SOLICITORS FOR THE RESPONDENT:

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER

SOLICITORS FOR THE INDEPENDENT CHIDREN’S LAWYER

Queensland Indigenous Family Violence Legal Service

Mr Fellows

Legal Aid Queensland

Orders until further order

Parental responsibility

1. That on and from 4:00pm Tuesday 22 April 2014, all previous Orders and Parenting Plans be discharged, and these Orders come into effect and operation.

1. That the Mother have sole responsibility for major long term issues concerning the children, N WINTERS born … 2010 and K WINTERS born … 2012 (the children) save that unless by an Order of a Court or written agreement of the Mother and Father:

(i)the mother shall not relocate the residence of the children outside the region of Townsville;

(ii)the mother shall not change the names of the children except as may be necessary to comply with Order 5.

1. In exercising sole parental responsibility, the mother shall first undertake the following before making any decision:

(i)Discuss the proposed decision with the father via the communication book referred to in clause 6; and

(ii)Consider any input or views that the father may have.

(iii)The mother shall inform the father, in writing via the communication book, of any long-term decision that she has made within fourteen (14) days of the making of that decision. 

1. That each party has responsibility for daily decisions about the day to day care, welfare and development of the children while in his or her care.

1. The child K Winters shall continue to be known by that name and in the event that the child’s birth is not registered in that name the parents shall do all acts and things and sign such documents as are necessary to change the child’s registered name to K Winters.

Communication between Parents

1. The parents shall keep one another informed of matters concerning the children via a communication book that travels with the child N at the commencement and conclusions of any time spent with the child N.  The communication book shall only discuss matters relating to the care, welfare and development of the children, such as schooling, extracurricular activities, medical issues and any other issues that may arise with respect to the children.

1. Each parent shall keep the other informed, in writing, of their residential addresses and telephone numbers and of any change in such contact details.

Who the children live with

1. That the children live with the Mother.

Time and Communication between the father and the children

First 6 months from date of order

1. That the children spend time with the Father at such times as may be arranged and supervised by B Contact Centre;

10. That each parent contact C Contact Centre within seven (7) days of the date of this order to complete their intake with the Contact Centre and:

(i)Arrange an appointment for assessment suitability for supervised time;

(ii)Attend the assessment;

(iii)Comply with any appointments made by the Contact Centre;

(iv)Comply with all reasonable requests, directions or rules as stipulated by the Contact Centre.

11. That the father be responsible for any fees of the said contact service.

After first 6 months

12. The parents shall request a report from the Contact Centre as to the progress of the father’s supervised time.

13. Thereafter the time and communication between the father and the child shall be as the parents may agree in writing and failing agreement:

(i)They shall attend upon Relationships Australia Townsville in order to facilitate agreement being reached between them;

(ii)Alternatively they shall attend upon Legal Aid mediation if the Independent Child Lawyer can arrange such a service.

Other orders

14. The mother shall not leave the children unsupervised with Mr E or Mr A nor leave the children unsupervised with the maternal grandmother if Mr E and/or Mr A is or is likely to be present.

15.  Within 3 months of the date of these Orders the mother shall use her best endeavours to obtain a home where she may live independently of the maternal grandmother, Mr E and Mr A.

NOTATION:       It is noted that the mother has already given evidence that she has moved to reside with her sister.

16. Neither parent will denigrate the other or their family to, or in front of, or within the hearing of, the children and shall direct third parties to refrain from denigrating either party or their family to, or in front of, or within hearing of, the children and failing their compliance with such a direction, that parent shall remove the children from that environment immediately.

17. Neither parent shall discuss these proceedings with the children.

18. That during the time the children are with either parent, that parent shall:

(i)Respect the privacy of the other parent and not question the children about the personal life of the other parent; and

(ii)Speak of the other parent respectfully; and

(iii)Not denigrate or insult the other parent in the presence or hearing of the children; and

(iv)Use their best endeavours to ensure that others do not denigrate or insult the other parent in the hearing or presence of the children.

19. Each parent is restrained and an injunction issued restraining each of them from:

(i)The consumption of illicit drugs in the period 24 hours before and for the period of time when the children (or ether of them) are in that parent’s care;

(ii)The consumption of alcohol to such an extent as makes that parent intoxicated for the period of time when the children (or ether of them) are in that parent’s care.

20. Within six (6) months of the date of these orders, the mother must attend a course of counselling to address the risk of her past negative developmental and family of origin experiences and how this may impact on her future parenting, including her capacity to protect herself and the children from harm.

21. Within six (6) months of the date of these orders, the father must enrol, attend and complete the eight week men’s program at the G Domestic Violence Organisation and provide a copy of his certificate of completion to the mother and the Family Court.

22. Within six (6) months of the date of these orders, both parents shall undertake a Parenting Orders Program with an appropriate service provider.  Both parents shall comply with any reasonable direction of the programme coordinator and will attend at any such other programme or course as recommended by the programme coordinator.

23. The Independent Child Lawyer is authorised to provide a copy of the Family Report to persons referred to in Orders 13, 20 and 21.

24. The further hearing of this matter is adjourned for mention before this Court at a date to be fixed not earlier than 1^st November 2014.

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

FAMILY COURT OF AUSTRALIA AT

FILE NUMBER: TVC320/2013

Mr Winters

Applicant

And

Ms Winters

Respondent

REASONS FOR JUDGMENT

INTRODUCTION  

1. By his Initiating Application filed 10 April 2013, the father sought final orders that the two children the subject of these proceedings, N born in 2010 and K born in 2012 (collectively “the children”) live with him and spend time and communicate with the mother.  His Application did not specify the extent to which, or the circumstances in which, the mother would so spend time and communicate with the children.  By her response filed 2 May 2013, the mother sought orders that the children remain in her care, with the father to have only supervised time with them.  Again the extent and circumstances of that supervision was not detailed.

2. By the conclusion of the trial, the father’s position had changed considerably.  The orders which he proposed differed between the two children.  As regards N, he proposed that he have sole parental responsibility, and that the child live with him, but spend time with the mother on a graduated increasing basis with a view to, after six months, spending time with her (seemingly) every weekend, including Friday and Saturday nights.  As regards K, he proposed equal shared parental responsibility, and (seemingly) that she live with the mother and spend time with the father on a graduated increasing basis with a view to, after six months, her spending five (unspecified) days per week with him.

3. At the conclusion of the trial, the mother’s position, save for one exception which I will detail later in these reasons, wholly overlapped with that of the Independent Children’s Lawyer.  The regime of orders contemplated was the same in relation to both children, and rather than final orders, only sought interim orders.  In substance those orders would see both children live with the mother and, for the first six months from the date of the orders, spend time with the father supervised at B Contact Centre.  At the conclusion of that six months, and subject to a satisfactory report from the Contact Centre, it was proposed that the parties would further negotiate with a view to resolving the proceedings on a final basis.

THE ISSUES

1. As identified by the parties during the course of this litigation, the issues in this case are as follows:

   ·Whether the relationship between the parties was a domestically violent one;

   ·Whether the father presents an unacceptable risk of emotional harm to one or both of the children;

   ·Whether the mother presents an unacceptable risk of physical and/or emotional harm to the children if they are in her care;

   ·The nature of the attachment between N and the mother;

   ·Whether the parties’ capacity to communicate is irretrievably broken down, with no prospect of repair or rehabilitation;

   ·Whether there is any realistic prospect of the parents being able to co-parent in the future.

2. However as I have already indicated, during the course of the trial, the mother and the Independent Children’s Lawyer identified that in fact, notwithstanding that the matter was proceeding by way of trial, at its conclusion only interim orders should be made.  Their argument ran as follows:

   ·The father is currently unreasonably obsessed with the risk of N being abused whilst in the mother’s care;

   ·N’s relationship and attachment to his mother has been impaired by virtue of him living with the father and spending limited time with her, and he would benefit from it being rehabilitated by spending considerably increased time with his mother;

   ·The father’s response to N spending more time with the mother will likely be to increase his interrogation of him upon his return to his care;

   ·Therefore the only practicable solution is to have a period where N’s care moves to the mother and his time with the father is supervised;

   ·There is no justification to have a different regime in relation to the children, and hence K’s time with the father should be the same as N’s;

   ·The parties’ communication has not irretrievably broken down to the point where it is beyond repair or rehabilitation;

   ·Assuming that the parties can continue to repair their communication, and N’s attachment to his mother is rehabilitated, there remains a realistic prospect that in the foreseeable future the parties will be able to co-parent;

   ·Assuming that can occur, then such a co-parenting arrangement would likely to be in the best interests of both children;

   ·Therefore the interim orders which they seek, albeit in a sense rehabilitative or therapeutic in purpose, nonetheless are in the best interests of both children.

3. It will be appreciated that whilst there is substantial overlap between the issues in the case, and the issues raised by the mother and the Independent Children’s Lawyer’s argument, that overlap is not complete. 

4. During the course of the father’s submissions, I raised with him practical difficulties arising from the way in which his proposed orders were cast.  It will be recalled that his orders contemplated increasing time being spent, on the one hand, by N with the mother, and on the other hand, by K with him.  However one only needs to consider, for instance, the mechanism by which his time with K would be increased to recognise the difficulties which his proposed orders raised.  That proposal was advanced in para.7 of his orders which provided:

   That the first three months that the child lives with the father three days per week to be graduated to five days per week over six months taking into consideration the primary attachment to the mother so as to coincide with weekend access with [N] and [K] to spend weekends with the mother progressing over six months.

5. Really what the father seemed to be saying is that there should be some means of monitored gradual increase in time depending upon K’s reaction.  Who was to supervise that and provide that guidance remained unclear.  

6. Starker examples are contained in paras.7 and 8 of the proposed orders in relation to N.  They were as follows:

   7. That the mother have day visits one day per week until she has suitable accommodation and can reasonably support the child financially.  Phone call one day per week.

   8. That after three months if the mother has demonstrated the ability to create a home and maintain it for the stability of the child that she has overnight visitation rights with the child from 5:00pm Friday until 4:00pm Saturday.

   i. Thereafter three months the mother has demonstrated stability in her home and can provide for the child to make an appointment at Relationships Australia with a view to increase contact to weekends ie Friday and Saturday nights from 5:00pm until 1:00pm Sunday.

7. Questions such as to whom the mother needs to demonstrate an ability to create a home, or indeed what that phrase means, are unanswered in the orders, and the father was unable to satisfactorily explain.

8. Upon analysis, it seems plain that in fact all parties acknowledge that the Court is not presently in a position to make final orders.  However, by the time this realisation set in, the trial was already well advanced.  On one view, perhaps it would have been better for an oral application for interim orders, together with the adjournment of the trial, to have been made at a much earlier stage, however I make no criticism of either the parties or their lawyers for the failure to do so.  It is simply the fact that the trial developed in that way.

9. However unlike in most interim hearings, here all the witnesses have been called and cross-examined, and hence, unusually, the Court is in a position to make findings of fact.  Whilst making such findings is, on one view attractive, and indeed counsel for the mother urged me to make final findings on all issues, it is on a practical level potentially unjust to the party against whom adverse findings on issues not relevant to the interim orders pronounced are made.  I say that because, if only interim orders are to be pronounced, but factual findings are made which do not directly impact upon those orders, whilst the parties would thereafter be bound by those findings in any subsequent litigation (insofar as they deal with historical fact) they may not be able to be challenged in any appeal against the interim orders.

10. Whilst the Court should not shirk away from making findings of fact where necessary to resolve competing regimes of interim orders, in my view, in this case the Court should not make unnecessary findings of fact, as to do so may see parties bound by those findings without any adequate opportunity to seek appellate review of them.  I therefore propose to restrict my fact finding to those matters which are necessary in order to answer the questions which this case gives rise to.

11. I identify those questions as follows:

    ·Would, if ultimately reasonably possible, some form of co-parenting involving shared care of the children be the optimum outcome for them (ie is that outcome likely to be in their best interests)?

    ·Is there a way in which the prospect of achieving that outcome can reasonably be facilitated by way of interim orders?

    ·Is facilitating that outcome better than making final orders at this stage?

    ·How can that outcome best be achieved? 

12. I propose to address those questions in that order.  However before I do so, I will discuss the relevant provisions and authorities dealing with the resolution on an interim basis of competing proposals between the parties in relation to children’s matters.

THE LAW

1. A convenient starting point is section 61DA of the Family Law Act, which by sub-section (1), provides that the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. In the event that, either because that presumption applies, or because it is otherwise in the child’s best interests that there be an order providing for equal shared parental responsibility, the court is obliged pursuant to section 65DAA(1) to then consider certain matters, including whether the child should spend equal time with each of the parents, or alternatively, substantial and significant time.

2. However s 61DA(2) provides that the presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in either abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family) or family violence. Further, subsection 61DA(4) provides that the presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for its parents to have equal shared parental responsibility.

3. In this context it is convenient to also advert to section 65DAC, which sets out the effect of a parenting order that provides for shared parental responsibility. By subsection (3) such an order is taken to require each of the persons subject to it to consult with the other person in relation to the decision to be made about any major long-term issue in relation to the child, and make a genuine effort to come to a joint decision about that issue. It can therefore be seen that the obligations which an order effecting equal shared parental responsibility imposes are potentially onerous.

1. Finally s 60CA provides that in deciding whether to make a particular parenting order, the court must regard the best interests of the child as the paramount consideration. The matters which a court must have regard to in determining the best interests of a child are set out in s 60CC.

2. In Goode v Goode (2006) FLC 93-286 at paragraph [56] the Full Court of the Family Court said as follows:

   In our view the Act makes it clear that when a parenting order is sought, whether it be an interim or final order, the starting point is the application of a presumption that it is in the best interests of the child that the child’s parents have equal shared parental responsibility as expressed in s 61DA, subject to the qualifications in sub-sections 2, 3 and 4.

3. At paragraph [82], the Full Court continued as follows:

   In an interim case that would involve the following:

   (a)identifying the competing proposals of the parties;

   (b)identifying the issues in dispute in the interim hearing;

   (c)identifying any agreed or uncontested relevant facts;

   (d)considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings that there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);

   (e)deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;

   (f)if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;

   (g)if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;

   (h)if equal time is found not to be in the child’s best interest, considering making an order that the child spend substantial and significant time as defined in s 65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;

   (i)if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC;

   (j)if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and

   (k)even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.

WOULD SHARED CARE BE THE OPTIMUM OUTCOME FOR THE CHILDREN?

1. There was little dissent from anyone to the proposition that some form of shared care of the children would, in the long term, be the best outcome for them.  Both by the orders that he ultimately sought, in his evidence, and in his submissions, the father conceded that the children would benefit from having substantial involvement of both parents in their lives.  The Independent Children’s Lawyer and the mother justify the interim orders which they seek in large part upon the desirability of some form of shared care in the future.  The Family Report writer, Ms F, in her Family Report dated 2 September 2013 (the recommendations in which were ultimately superseded by her oral evidence), recommended that N spend time with the father over four nights per fortnight until he commences prep.   Whilst she recommended that until May 2014 K should only spend two hours per fortnight supervised time with the father, she contemplated that regime changing thereafter.  The only reason why, in her oral evidence, she departed from that recommendation in relation to N, was because of her concerns that firstly, he had since separation suffered a disrupted attachment to his mother, but more importantly, that the father’s interrogation of N when he returned from spending time with the mother was not promoting N’s relationship with her.  She therefore recommended that there be six months supervision of the father’s time with N, at the conclusion of which the time that the father spent with N should be reviewed to see whether or not it could be increased.

2. In my view, the parties’ concessions and Ms F’s evidence is soundly based.  Both of these parents have much to offer these children.  The real question is whether a realistic opportunity for the children to obtain that benefit can be constructed.  That, of course, is the next question.

IS THERE A REALISTIC PROSPECT OF SHARED CARE IN THE FUTURE?

1. In order to assess the prospects of the parties being able to achieve a shared care arrangement in the future, it is necessary to descend to some detail of the parties’ history. 

2. Their relationship commenced in 2005, and they married in March 2006.  They separated in March 2013.

3. During the course of their relationship they initially lived in Town I in Queensland, then moved to Town H in Queensland where they lived for a period of time.  Later they moved to South Australia then to Town D in Queensland, and spent several years in Town J in New South Wales, before moving to Townsville.

4. The invariable practice of the parties was to seek employment in local agricultural businesses, or other manual occupations, although I note that for a period the father worked in the hospitality industry in New South Wales.

5. Unfortunately a recurrent feature of the time that they lived together appears to have been a lack of funds, on occasions descending to real poverty.  Much of their life seems to have been spent living in sub-standard housing, and on occasions, they have lived in caravans or tents.

6. The mother says that a further persistent feature of their relationship was a domineering and controlling attitude towards her by the father, who would, she says, regularly accuse her of infidelity with other men.  There were often verbal altercations.  She also says that there was on occasion physical violence.

7. Each of the parties accused the other of alcohol abuse during the course of their relationship.  On the part of the father, there can be absolutely no doubt that, at least on occasions, he has seriously abused alcohol, as he has five drink driving convictions, and in 2008, was involved in a serious road accident which was alcohol related.

8. Dr L, a psychiatrist who assessed both parties in 2013, was of the view that the father appeared to minimise the impact of alcohol on his life.

9. In her interview with Dr L, the mother denied any current alcohol problems however admitted that she did drink “several years ago”.  She appeared to blame the father in part for that, as she said that he “drank a lot so she joined him because she had nothing else to do.”

10. Eventually the parties moved to Townsville to live adjacent to the maternal grandmother and her family in an attempt to escape the squalor of their lives in Town J.  They lived behind the maternal grandmother’s home in what has been variously described in the evidence as a “bungalow” or a “donga.”  Whatever be its character, it appears to have been far superior accommodation than the parties had been enjoying in Town J.

11. However the household of the maternal grandmother is one characterised by conflict, and, on occasions, violence.  Moreover the father did not enjoy a good relationship either with the maternal grandmother, or with her husband, Mr E.

12. By the conclusion of the hearing before me, the mother conceded that she should submit to orders which obliged her to use her best endeavours to live independently of her mother, Mr E and her sister’s former partner, within three months.  This concession in large part absolves me from detailing the several undesirable characteristics of both Mr E and the home where he resides with the maternal grandmother.  The mother’s concession is well founded, and absent such a concession, may have required a more critical evaluation of her insight into the need to protect the children from emotional harm, and indeed physical harm.

13. Post separation, it is plain that Mr E and, to a lesser extent, the maternal grandmother, have been a substantial catalyst for conflict between the parties.  There have been menacing exchanges between the father and Mr E or others associated with him on Facebook.  Mr E appears to have adopted an aggressive stance at changeovers.  There have been aggressive and potentially violent exchanges between the father and Mr E associated with Court events in these proceedings.   Both sides of the dispute in these proceedings appear to exchange allegations that each is sexually abusing the children as if they were ordinary conversational pleasantries.

14. Part of the difficulty in this case is the mother’s somewhat timid and dependent personality.  She appears to have become enmeshed with her mother and her household, in part because of her lack of financial independence, but also because of her generally emotionally dependent character.

15. One of Ms F’s recommendations was to have the mother engage with support services with a view to providing her with the supports which she needs to break away from the plainly unhealthy environment of the maternal grandmother’s home.  Amongst the evidence tendered late in the trial was correspondence[1] indicating that the mother had engaged with at least one organisation from which it could be reasonably supposed that she would, if not obtain such support directly, then at least be referred to other organisations which could provide that support.

    [1]Exhibit 18.

16. Notwithstanding the toxic recent history between the parties, particularly associated with the maternal grandmother’s household, it seems that absent the maternal grandmother and Mr E’s direct influence, the parties are able to, when they put their minds to it, behave towards each other in a civil and child focused way.  Amongst the most extraordinary aspects of the evidence before me is an occasion in late 2013 when the parties – amidst all the hostility of this Court case – were able to arrange to spend five hours together with the children at a water park on the Strand in Townsville.  The mother described it as the happiest occasion that the parties had ever spent together, including during the time when they were in a relationship.  Although it has not occurred since then, the parties both expressed a willingness to engage in such an event in the future.

17. Moreover, the father says that recent changeovers also have been positive events, at least when they are not subject to the intimidatory behaviour of Mr E.  He and the mother can discuss things amicably in the presence of both of the children, and there has been no problem, at least according to the father, associated with changeovers for some months.

18. Both parties expressed a desire to be able to get on with the other and communicate in a respectful and child focused way.  Each conceded the desirability of the children spending substantial time with each other.  The prospect of the parties being able to maintain respectful and child focused communication will be enhanced as the mother distances herself from those associated with her mother’s household, particularly Mr E.

19. In my view, providing the parties can achieve habitually good communication, that will provide the foundation from which a potential shared care arrangement could be built.  In my view, there is a very live prospect of that communication becoming the norm for their interactions.  In saying that, I am not overlooking their difficult history, however I am particularly mindful that the parties have only been separated for a year, and during that year the mother has been substantially influenced by the maternal grandmother and Mr E.  With the passage of time, and with a reduction in that influence, I think there is every possibility that the dust will settle, and the parties will start to move on with their lives and be less focussed upon being hostile to the other.

IS FACILITATING THE PROSPECT OF SHARED CARE BY INTERIM ORDERS BETTER THAN FINAL ORDERS?

1. I acknowledge that the age of the children and the relatively unstable history of the parties would tend to suggest, of itself and without more, that final orders in this case may not be achievable.  Indeed Ms F’s recommendations, particularly as regards K, acknowledged as much.

2. However in my view an even more compelling reason for making interim orders in this case is the realistic prospect that, if appropriately fashioned, they may be able to lay the foundation for the rehabilitation of the parties’ communication.  If achieved, that should provide a firm basis for the Court considering a shared care arrangement, with a view to optimising the children’s relationship with each parent.  I assess the prospect of that rehabilitation as sufficiently real to warrant interim orders in this case.  The question then becomes what those orders should contain in order to sufficiently optimise the prospect of that outcome.

WHAT INTERIM ORDERS WOULD OPTIMISE THE PROSPECT OF SHARED CARE IN THE FUTURE?

1. There are three matters of substance which need to be addressed and remedied before there is any realistic prospect of a shared care arrangement for the children.  The first matter is that the mother needs to achieve housing which does not expose the children to a risk of physical and/or emotional harm.  The second is that the father needs to modify, at least his behaviours of interrogation of N upon return from the mother’s care, and more ideally, his seeming obsession with the prospect of sexual abuse of N whilst he is in the care of the mother.  The third is that N’s presently impaired attachment with his mother needs to be repaired.  I will deal with each of these serially.

Mother’s housing

1. I have already in these reasons discussed the unsatisfactory features of the maternal grandmother’s home, at which, up until the resumption of the trial in February, the mother had been residing with K.  As I previously indicated, given the mother’s concession that she should live independently of her mother and more particularly Mr E, and the fact that she has during the course of the trial left that home and moved into reside with her sister, it is unnecessary to, at least at this point, descend to specifically identifying the incidents from which I might have found that the maternal grandmother’s home represents a real risk of emotional and/or physical harm to the children.  It is a household beset with conflict, which goes beyond argument on occasion and extends to physical violence being perpetrated in front of children. 

2. Ms F identified that her concerns in relation to that home lay with Mr E, rather than Ms E (the maternal grandmother).  I agree.

3. The difficulty is that the mother appears to have abandoned the independent accommodation that she had in Town M – as to which there was little basis for any criticism that it presented a risk of harm to the children – in favour of residing with her mother, in a clearly unsatisfactory arrangement.  Moreover, although the mother identified that it was highly desirable for her to obtain alternative independent accommodation, and said that she had been attempting to do so, she was unable to point to any real concrete effort on her part, perhaps largely due to the fact that she is without a car, licence or much money. 

4. The orders proposed by the Independent Children’s Lawyer require the mother to:

   Within three months of the date of these orders the mother shall use her best endeavours to obtain a home where she may live independently of [the maternal grandmother], [Mr E] and [Mr A].

5. I accept that such an order is appropriate in the circumstances; there may be many practical reasons why the mother cannot actually obtain such housing.  However it needs to be said that, in the event that she cannot obtain such housing, and hence is continuing to expose the children to the unsatisfactory household associated with the maternal grandmother, that would likely substantially influence the final outcome of these proceedings.

Father’s interrogation of N

1. The father gave evidence that, on occasion, N had made disclosures to him that he had been abused by Mr E and others, and that he had recorded some of those disclosures.  No doubt thinking that they would help his case, the father tendered 13 such recordings into evidence.  They did not help his case.  Rather they showed the unsavoury reality that on many occasions when N returned from his mother’s care, or shortly thereafter, the father would badger N in an effort to elicit details of any misconduct that may have been perpetrated upon him in the mother’s care.

2. Examples of the father’s interviewing style, which show that he was intent of obtaining information showing misconduct by the mother or her family, rather than others are as follows:

   (a)from the transcript of what is described as the “hot knife video” :

   [FATHER]     yea and who else done it

   [N] mmmm mumma

   [FATHER] and who else

   [N] mmmm [K]

   [FATHER][K] no [K] didn’t do it

   [N]yes she did

   [FATHER][K’s] nice

   [N]yes

   (b)later in the “hot knife video”:

   [FATHER]That’s button that’s right.  And what else did happen to you at nanna’s and pop’s

   (c)in a transcript titled “Play phone pop I will be sad at pop’s”:

   [FATHER]and who done that scar

   [N]poppy

   [FATHER]and did they tell you to say daddy done it

   [N]mmmm

   [FATHER]they did

   [N]no they did (indistinct)

   (c)in another separate interview, nonetheless still entitled “Play phone pop I will be sad at pop’s”

   [FATHER]yea do you think [K] is sad

   [N]yes

   [FATHER] how come she is sad

   [N](indistinct)

   [FATHER]because she missed [N]

   [N]she does

   [FATHER]I think she does

   [N](indistinct)

   [FATHER]yea baby.  Do you reckon she misses dad too

   [N]she does

   [FATHER]lots and lots or lots and lots and lots

   [N]lots lots lots

3. In his evidence the father said that sometime he would only start the recordings after a disclosure had been made, and in that event he would try and prompt a repetition of the disclosure.  A good illustration of this is in the transcript of an interview headed “Bum sore nanna thumb” where it commences:

   [FATHER]     what does grandma put in the bum darling?

   [N]                (indistinct)

   [FATHER]     you just said grandma puts it in the bum.  Your bum is very has been very sore

   [N]                (indistinct)

   [FATHER]     she puts it in the bum cause its very sore

   [N]                (indistinct)

   [FATHER]     what does grandma put in the bum darling?

4. The interviews are also replete with emotional rewards being given to N in consequence of making disclosures, the father prompting him to make disclosures, and the father seeking to repeat in an affirmative way disclosures with a view to, on one interpretation firming N’s story in a way that suited the father.

5. Ultimately the father conceded that his questioning of N was inappropriate, and said that he would not do it in the future.  He recognised that giving N the impression that his mother represented a potential threat of harm to him could damage him psychologically.  That concession was soundly based.

6. The father was cross-examined extensively by Mr Fellows, who appeared as counsel for the Independent Children’s Lawyer, about the near complete absence of any objective evidence to support the father’s belief that N had been abused while in the mother’s care.  The father accepted that there was little, if any, objective support, but nonetheless maintained his belief of abuse.  It is therefore difficult for me to accept unquestioningly the father’s evidence that he does not in the future intend to either again question N in relation to alleged past abuse, or alternatively, to interrogate him with a view to seeing whether there is any further abuse that may have been meted out to him whilst in the mother’s care.

1. On occasions it seems clear that the father has, at least in part, been motivated by seeking a forensic advantage in these proceedings, by having allegations of abuse able to be levelled against the mother, or at least those in her household.

2. Moreover there is the contradiction between the father maintaining a belief that the child has been abused, and potentially remains at risk of abuse in the mother’s care, with the orders that he seeks, namely that there be a shared care arrangement.  If there was a genuine basis for questioning the mother’s capacity to provide an environment for the children free of a risk of harm, such orders would be inappropriate.  Nonetheless those are the orders which the father seeks.

3. There is the further difficulty that the father has visited N with a substantial level of interrogation based upon the very limited amount of time that he has been spending with the mother.  Even the father proposes that the mother should spend more time with N: it logically follows that the father’s concerns would likely grow commensurately with that increase in time.  There is therefore the very real prospect that an increase in the time N spends with his mother would lead to an even greater interrogation of N by the father.

4. The Family Report writer, when confronted with the recordings, expressed great concern, and recommended that the father’s time with N be supervised for the next six months.  I accept that recommendation.  It is necessary that the father’s time with N be supervised in order to protect N from ongoing risk of psychological harm arising from the father’s interrogation of him.  Whilst that necessarily will markedly diminish the father’s role in N’s life for that six months, there is no evidence from which I could conclude that it would sever his attachment with the father.  To the extent that there is a diminished relationship with the father in consequence of the time being severely curtailed, to what will in reality be about two hours a week or perhaps only a fortnight, it is outweighed by the need to protect N from harm, and, as discussed later in these reasons, the need to rehabilitate N’s relationship with his mother.

N’s attachment with the mother

1. On 2 May 2013, the Federal Circuit Court ordered by consent that N live with the mother and father on a three day rotation basis, and K spend three hours with the father on each of the days that N was in his care, but otherwise live with the mother.  Those orders were to commence at 4:00pm on that day, and were intended to see N go into his father’s care for three days at that time.  Unfortunately the mother did not comply with that order.  On 3 May a Federal Circuit Court Judge suspended the orders he had made the previous day in relation to N and ordered that he live with the father.  The matter was then transferred to this Court.

2. On 17 June 2013, I ordered by consent that N live with the father, and K live with the mother.  On 26 June there were further consent orders made which saw N continue to live with his father, but spend weekend time with his mother on an increasing basis, such that from 23 August 2013, he would spend from 5:00pm Friday until 1:00pm Sunday in her care.

3. In her evidence, Ms F identified that the effect of those interim orders – which took N from the mother’s care, and restricted her time with him to weekends – had impaired his relationship and attachment with the mother.  She was not challenged in relation to that.  Moreover, in the course of his submissions, the father conceded that that attachment had been impaired, and needed to be rehabilitated.  The father was given many opportunities to suggest a better regime for rehabilitating that relationship than that suggested by Ms F, namely that for the next six months N live with the mother and only spend supervised time with the father.  Despite repeated opportunities to generate any better alternative, the father was not able to do so.  To the extent that he came up with an alternative, it was to order shared care.  However he conceded, when pressed, that the parties’ relationship is not one which can presently sustain a shared care arrangement of the children.  He therefore was, in effect, conceding that the only alternative that he was able offer was a non-viable one.

ORDERS

Parental responsibility

1. Plainly, given the exposure of N and K to family violence, at the very least in the maternal grandmother’s home, the presumption in relation to equal shared parental responsibility does not apply. It follows then that the allocation of parental responsibility for the children remains one to be determined by a best interests consideration taking into account the relevant s 60CC factors. In this instance, I have not individually traversed each of the relevant primary and additional considerations, because they have, to the extent that they are relevant, been otherwise discussed in the parts of this judgment that deal with the issues as identified by the parties.

2. The simple fact is that, whilst in the longer term it might be hoped that the parties will be able to achieve respectful and child focussed communication, there is little basis for thinking that they presently could do so. If there were to be an order for equal shared parental responsibility, s 65DAC would require them to consult with each other in relation to decisions to be made about any major long term issue, and to make a genuine effort to come to a joint decision about that issue. At present, such an order would be unworkable. It therefore follows that there must be an order allocating parental responsibility to one parent to the exclusion of the other.

3. In my view it is appropriate that that parental responsibility fall to the parent with whom the child or children is primarily resident.  Against that background I therefore turn to consider with whom the children should live.

With whom should N live?

1. As has been seen from my discussion of the issues earlier in these reasons, it is in N’s best interests if, for the next six months, he resides primarily with his mother, with a view to restoring and rehabilitating his attachment with her.  The father was unable to identify any viable alternative to that arrangement.

2. However that is not the only reason to justify such an order as being in N’s best interests.  As shall be seen, in my view it is also appropriate for that period that K live primarily with the mother.  It is regrettable that the children have now, for some period of time, been separated from each other.  I think that it is in both of the children’s best interests that they re-establish or improve their sibling bond as soon as possible.

3. Finally, in my view the father’s obsessive questioning of N, particularly focussing upon his adamant belief that the mother represents an unacceptable risk harm of a sexual kind whilst she is living with her mother and husband, is as Ms F says, a risk to N’s psychological health.  The cycle of the father’s conduct in this regard needs to be broken. 

With whom should K live?

1. K is now about eighteen months of age.  Since her birth she has spent virtually all her time with the mother, save for some periods of time when, in the mother’s company, she has also spent time her father.  The father has not availed himself of the opportunity for supervised contact at B Contact Centre which the present regime of orders would permit.

2. Given those matters, it is plainly in K’s best interests that for the time being she continue to live with the mother.

What time should N and K spend with the father?

1. As I have already detailed, the father has been regularly interrogating N upon his return from his mother, in large part because of his concerns that he may have been sexually abused in her care.  That obsession has, it seems, its genesis in his belief that, even during the latter stages of the parties’ relationship, the maternal grandmother was breast feeding N.  Although he claims to have seen that occur, at a time when he observed the mother in the same bed as the maternal grandmother breastfeeding K, not only did the mother and maternal grandmother both deny that that had ever occurred, but the father has reported the occasion inconsistently, in that he has also asserted that the occasion he saw the maternal grandmother breastfeeding N was when K was in the donga.  In any event, the story is inherently unlikely.  I find that event did not occur.

2. Nonetheless the father’s belief as to abuse of N whilst he was in the mother’s care has not abated with time.  It is unnecessary to recite the full history, but it includes the father believing that someone – probably Mr E – sexually assaulted N with a wooden object by inserting it into his anus, and other occasions that N has been sexual assaulted by Mr E.  Moreover, it is not in contest that the father has regularly questioned N about such things, and indeed the father himself tendered into evidence the recordings of such interrogations.

3. The father conceded that what he was then doing to N was quite inappropriate.

4. The difficulty is that the father’s obsession with the prospect of N being harmed in the mother’s care is so great and so deep seated, that it is likely to continue.  Moreover, N will, pursuant to these orders, be spending far greater time with the mother, which would logically suggest that the father is likely to believe that the chances of harm being meted out on N will be commensurately greater.  That is only likely to prompt him to make further inquiry of N, albeit perhaps of a more subtle kind than he has thus far deployed.  Plainly that sort of behaviour is likely to psychologically harm N, and may well inhibit N re-establishing an attachment with his mother.

5. For those reasons, it is appropriate that the father’s time with N be supervised for the next six months.  In that time hopefully he will break his habit of interrogating N, and come to realise that the mother does not represent the risk of harm to N which he presently believes she does.  Unfortunately, the only professional supervision available is at B Contact Centre, which is likely to only be able to accommodate the father for either two hours per fortnight, or two hours per week, of supervised time.  I should make it plain that, if alternative supervision had been available, I would have been inclined to make orders permitting a greater period of time for N to spend with his father, and it is only the limitation of the time at the Contact Centre which motivates me to restrict the father’s time with N to the extent that these orders will do so.

6. Turning then to K, the father has not to date taken up the opportunity of spending supervised time with her, rather contenting himself with spending time with her in the presence of the mother during changeovers of N.  It is appropriate to maintain the supervision of K spending time with the father, for the next six months, in part because of her age, and in part because the father’s time with N will be supervised in any event.

Other orders

1. Amongst the other orders proposed by the Independent Children’s Lawyer are orders:

   ·Restraining the mother from leaving the children unsupervised with Mr E and her sister’s former partner, Mr A;

   ·Requiring the mother to use her best endeavours to obtain an independent home within three months;

   ·Restraining each party from denigrating other family members near the child;

   ·Restraining the parties from discussing their proceedings with either child;

   ·Ensuring that the children are not adversely questioned in relation to their time with the other parent, or exposed to disrespectful communication in relation to that other parent;

   ·Ensuring  that neither party spend time with the child when under the influence of drugs or alcohol;

   ·Requiring the mother to seek counselling to assist her;

   ·Requiring the father to complete an educational program to help him deal with anger;

   ·Requiring both parties to undertake a Parenting Orders Program;

   ·Permitting the Independent Children’s Lawyer to provide those who are to assist the parties with a copy of Ms F’s Family Report;

   ·Not permitting the hearing of this matter to resume prior to 1 November 2014.

2. It is unnecessary to provide any detailed reasons as to why those orders are appropriate and in the children’s best interests.  I am satisfied that they are self-evidently in the children’s best interests and will so order.

ATODS order

1. There is a however a dispute between the Independent Children’s Lawyer and the mother as to whether, in addition to the above orders, there should be a further order in the following terms:

   Within 14 days of this order the father shall:

   (a)engage an accredited drug and alcohol agency or service for support, rehabilitation and counselling for his use of alcohol;

   (b)notify the Independent Children’s Lawyer of the name of his alcohol case worker and the Independent Children’s Lawyer provide to that person a copy of any relevant material relevant to the father’s alcohol history;

   (c)provide the Independent Children’s Lawyer with a report every two months from his alcohol case worker regarding his progress.

2. Mr Fellows opposed the making of such an order, because the father refuses to concede that he has a problem with alcohol, which would be a precondition to there being any therapeutic value derived from such an order.  I agree.  Unless and until the father is prepared to concede that he does, or may, have a problem with alcohol, there is no benefit likely to be obtained from such an order.  Moreover, there is no material before me as to what cost, if any, may be associated with that therapy, or the father’s capacity to meet any such cost.

3. There will therefore be no order in the terms sought by the mother.    

CONCLUSION

1. For the forgoing reasons, there will be orders as proposed by the Independent Children’s Lawyer.  

2. I will hear the parties further as to when these orders should come into effect, particularly in light of any delay which the father might experience in being accepted for supervision by B Contact Centre.                  

I certify that the preceding eighty-four (84) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 3 April 2014.

Associate: 

Date:  3 April 2014