Wright and Wright
[2010] FamCA 1109
•7 December 2010
FAMILY COURT OF AUSTRALIA
| WRIGHT & WRIGHT | [2010] FamCA 1109 |
| FAMILY LAW – CHILDREN – Parental responsibility – Mother alleges sexual abuse of the eldest child by the father – Rules of evidence apply to the issue of sexual abuse – Mother concedes the evidence carried insufficient weight to prove the father sexually abused the child – Finding that children are not exposed to an unacceptable risk of abuse – Family Law Act 1975 (Cth) s 60CC should not be considered in isolation from the conclusions reached about the existence of any unacceptable risk of abuse to the child – Mother alleges family violence perpetrated by the father – Allegations of family violence not sustained – Mother argues for sole parental responsibility due to high conflict in the parties’ relationship – Presumption of equal shared parental responsibility applies FAMILY LAW – CHILDREN – Equal time or substantial and significant time – Children are of a young age – Children have primary attachment to the mother – Children should not live for equal time in each household – Children spend time with the father gradually increasing to substantial and significant time |
| Family Law Act 1975 (Cth) ss 4, 60B, 60CA, 60CC, 61B, 61DA, 64B, 65AA, 65D, 65DAA, 65DAC, 65DAE, 67ZC, 68B, 69ZT, 114 |
| A v A (1998) FLC 92-800 Amador & Amador (2010) 43 Fam LR 268 Goode & Goode (2006) FLC 93-286 B & B (1993) FLC 92-357 L v T (1999) FLC 92-875 M & M (1988) 166 CLR 69 MRR v GR (2010) 240 CLR 461 Napier & Hepburn (2006) FLC 93-303 Potter & Potter (2007) FLC 93-326 Re David (1997) FLC 92-776 |
| APPLICANT: | Mr Wright |
| RESPONDENT: | Ms Wright |
| INDEPENDENT CHILDREN’S LAWYER: | Mr Squires, Legal Aid NSW |
| FILE NUMBER: | NCC | 3338 | of | 2007 |
| DATE DELIVERED: | 7 December 2010 |
| PLACE DELIVERED: | Newcastle |
| PLACE HEARD: | Newcastle |
| JUDGMENT OF: | Justice Austin |
| HEARING DATE: | 9, 10, 11 & 12 November 2010 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Duane |
| SOLICITOR FOR THE APPLICANT: | McDonald Johnson Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Moss |
| SOLICITOR FOR THE RESPONDENT: | Ticehurst Foat Lawyers |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Not Applicable |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms O'Rourke, Legal Aid NSW |
Orders
All former parenting orders relating to S, born … June 2006, and O, born … April 2009, (“the children”) are discharged.
The mother and father shall have equal shared parental responsibility for the children.
The children shall live with the mother.
Each of the parties shall take all reasonable steps to ensure that the children spend time with the father as follows, or as otherwise agreed:
4.1Until 30 April 2011:
4.1.1With the exception of Saturday 25 December 2010, each Saturday from 9.00 am until 1.00 pm, commencing on the first Saturday following these orders;
4.1.2Each Wednesday from 5.30 pm until 7.00 pm, commencing on the first Wednesday following these orders; and
4.1.3On Saturday 25 December 2010 from 12.00 noon until 6.00 pm.
4.2From 1 May 2011 until 31 October 2011:
4.2.1Each Saturday from 9.00 am until 6.00 pm; and
4.2.2Each Wednesday from 5.30 pm until 7.00 pm.
4.3From 1 November 2011 until 30 April 2012:
4.3.1Each alternate weekend from 9.00 am Saturday until 6.00 pm Sunday; and
4.3.2Each Wednesday from 5.30 pm until 7.30 pm.
4.4From 1 May 2012 until 31 January 2014:
4.4.1Each alternate weekend from 5.30 pm Thursday until 7.30 pm Sunday, commencing on the second Thursday after the conclusion of the last period of time spent under Order 4.3.1; and
4.4.2Each alternate Thursday from 5.30 pm until 7.30 pm, commencing on the first Thursday after the conclusion of the last period of time spent under Order 4.3.1.
4.5From 1 February 2014:
4.5.1In school terms, each alternate weekend from 5.30 pm Thursday until 7.30 pm Sunday, commencing on the second Thursday after the conclusion of the last period of time spent under Order 4.4.1; and
4.5.2In school terms, each alternate Thursday from 5.30 pm until the commencement of school or pre-school on Friday, commencing on the second Thursday after the conclusion of the last period of time spent under Order 4.4.2.
4.5.3During school holidays, except the Christmas school holidays, for the first half of such holidays in every even numbered year, and for the second half of such holidays in every odd numbered year.
4.5.4During the New South Wales Christmas school holidays, on an alternating week-about basis, commencing in the first week of the holidays in the years when the holidays commence in an even numbered year, and commencing in the second week of the holidays in the years when the holidays commence in an odd numbered year.
For the purposes of implementation of Order 4.5, the school holidays are deemed to commence on the first day following the last day of school term, the holidays are deemed to end on the last day preceding the day upon which the children are due to return to school, and the mid point is the day halfway between those first and last days.
Order 4 is suspended during the following periods:
6.1Commencing on 24 December 2011, from 3.00 pm on Christmas Eve until 3.00 pm on Boxing Day each year, during which period the children will spend time with the father from 3.00 pm on Christmas Eve until 3.00 pm on Christmas Day, and with the mother from 3.00 pm on Christmas Day until 3.00 pm on Boxing Day in odd numbered years, with the same arrangements in reverse in even numbered years.
6.2Commencing in 2011, between 10.00 am and 6.00 pm on each Mother’s Day and Father’s Day, during which periods the children shall spend time with the mother on Mother’s Day and with the father on Father’s Day.
For the purposes of implementing the time spent by the children with the father pursuant to all Orders other than Order 4.5.2, the mother shall cause the delivery and the father shall cause the collection of the children at the commencement of the time to be spent with the father at the McDonalds Restaurant at Newcastle, NSW, and the father shall cause the delivery and the mother shall cause the collection of the children at the conclusion of the time spent with the father at the same place.
For the purposes of implementing the return of the children by the father following them spending time with him pursuant to Order 4.5.2, the father shall deliver the children at the conclusion of that time to either school or pre-school prior to the commencement of school or pre-school that morning.
Upon commencement of Order 4.3, unless otherwise agreed, the parties shall take all reasonable steps to ensure that the children communicate privately by telephone with the father each Monday and Thursday when the children are living with the mother, between 6.00 pm and 6.30 pm, and for that purpose the father shall telephone the children on the telephone number provided to him by the mother, and the mother shall ensure that the children are able to receive the father’s calls on that number at that time.
Upon commencement of Order 4.5, unless otherwise agreed, the parties shall take all reasonable steps to ensure that the children communicate privately by telephone with the mother each Wednesday when the children are spending time with the father, between 6.00 pm and 6.30 pm, and for that purpose the mother shall telephone the children on the telephone number provided to her by the father, and the father shall ensure that the children are able to receive the mother’s calls on that number at that time.
The parties shall take all reasonable steps to ensure that the children communicate privately by telephone with the parent with whom they are not then staying, on the children’s birthdays, between 6.00 pm and 6.30 pm, and for that purpose the parent with whom the children are not staying shall telephone the children on the telephone number provided by the other parent for that purpose, and the parent with whom the children are staying shall ensure that the children are able to receive the other parent’s calls on that number at that time.
Each party is restrained from denigrating the other in the presence or hearing of the children, and from permitting the children to remain in the presence or hearing of another person denigrating the other.
Each party is restrained from permitting the children to refer to:
13.1Any person other than the biological parents by use of the terms “Mum” and “Dad”, or like terms, respectively.
13.2The father by any name other than “Dad” or like term.
13.3The mother by any name other than “Mum” or like term.
Each party shall notify the other of any medical emergency, illness or injury suffered by the children whilst in their respective care warranting treatment by a third party, and shall authorise any treating health professionals to communicate with the other parent about the condition and treatment of the children.
Each party, in so far as it is respectively known to them, shall keep the other informed of all educational, sporting, cultural, and extra-curricular events in which the children are to participate.
Each party shall forthwith inform the other, and keep the other informed, in writing of their respective current residential address, landline telephone number, mobile telephone number, and email address.
The parties shall forthwith enrol themselves to commence, and thereafter participate in and complete a post-separation parenting program approved by the Independent Children’s Lawyer.
In the event of any party notifying either the police or a prescribed child welfare authority that the children, or either of them, has been or is the subject of actual or potential abuse, the notifying party shall simultaneously, or as soon as possible thereafter, provide to the person to whom the notification is made:
18.1A copy of these orders;
18.2A copy of these reasons for judgment; and
18.3A copy of the expert report of Dr R dated 26 May 2010.
Pursuant to s 65DA(2) and s 62B of the Family Law Act, the particulars of the obligations that these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
The Independent Children’s Lawyer is discharged upon the later of the expiration of any applicable appeal period and compliance with Order 17 hereof.
Costs are reserved for 28 days.
Any and all outstanding applications are dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Wright & Wright is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT NEWCASTLE |
FILE NUMBER: NCC 3338 of 2007
| MR WRIGHT |
Applicant
And
| MS WRIGHT |
Respondent
And
| INDEPENDENT CHILDREN’S LAWYER |
REASONS FOR JUDGMENT
Introduction
These proceedings concern the parenting orders that should be made in respect of the two children of the applicant father and respondent mother, those children being S born in June 2006, and O born in April 2009. The children are now aged 4 years and 19 months respectively.
The parents separated in July 2007, when the eldest child was only an infant and before the youngest child was even born. Some months later, in March 2008, the parties reached an amicable agreement about the parenting orders that should apply to their eldest child. They then unsuccessfully attempted to reconcile their relationship over a period of several months, which resulted in the mother’s conception of the youngest child.
Although the relationship between the parties was fractious from the time they abandoned their attempts at reconciliation, they were still able to ensure that the eldest child spent time with the father up to and following the birth of the youngest child in April 2009.
The modicum of co-operation that existed between the parties completely evaporated after an occasion when the eldest child spent time with the father in early May 2009, following which the mother made allegations that the father had sexually abused the eldest child by inserting a pencil into her vagina causing her to bleed. As a consequence of those allegations the mother terminated the arrangements for either child to spend time with the father, albeit that the orders of March 2008 remained in force in respect of the eldest child.
The allegations of sexual abuse against the father dominated the litigation. The mother’s case was presented on the basis that parenting arrangements between the parties had been amicable before that event, but the incident of sexual abuse necessarily means that the father poses an unacceptable risk of abuse to the children, which can only be attenuated by the time spent by the children with the father being supervised indefinitely. The father refutes the allegation of sexual abuse and contends that neither child is at an unacceptable risk of abuse in his care.
Although the father did not seek to disturb the children’s residence with the mother, the parties were also in conflict about the allocation of parental responsibility for the children. The father wanted equal shared parental responsibility but the mother wanted sole parental responsibility.
Proposals and primary evidence
The father pressed for the orders set out within his Amended Initiating Application filed on 11 June 2010, in support of which he relied upon:
a)His affidavit filed on 6 October 2010.
b)The affidavit of Ms A, the father’s partner, filed on 6 October 2010.
c)The affidavit of the paternal grandfather, filed on 6 October 2010.
d)The affidavit of Ms W, the paternal grandfather’s partner, filed on 19 October 2010.
The mother pressed for the orders set out within her Amended Response filed on 21 June 2010, in support of which she relied upon:
a)Her affidavit filed on 11 October 2010.
b)Her Form 4 Notice of Child Abuse or Family Violence filed on 20 November 2009.
c)The affidavit of Ms K filed on 11 October 2010.
d)The affidavit of Ms M filed on 11 October 2010.
e)The affidavit of the mother’s sister, filed on 11 October 2010.
f)The affidavit of the maternal grandmother, filed on 11 October 2010.
g)The affidavit of Dr B filed on 8 November 2010.
The mother announced at the commencement of the trial that she sought from the Court a specific finding that the father had sexually abused the eldest child on 2 May 2009, and in the alternative, a finding that the father constituted an unacceptable risk of sexual abuse to that child. In light of the mother’s express purpose to establish the commission by the father of a serious criminal offence, in reliance upon s 69ZT of the Family Law Act (“the Act”), the father sought that the rules of evidence be applied to the entirety of the evidence adduced in the case. Although that broad application was rejected, a ruling was made that the rules of evidence would apply to the evidence touching upon the allegation of the father’s sexual abuse of the eldest child (see Amador & Amador (2010) 43 Fam LR 268 at [93]). The mother did not object to that more restricted ruling. As a consequence, some of the evidence adduced by the mother was rejected as inadmissible.
The Independent Children’s Lawyer did not begin the case with any fixed position, but at the conclusion of the trial tendered a Minute of Orders[1] proposing orders which were generally consistent with the evidence of the single expert.
[1] Exhibit ICL8
The parties and the Independent Children’s Lawyer mutually relied upon the evidence of the single expert, Dr R, psychiatrist, who was cross examined at length on the contents of her report dated 26 May 2010.
Background facts
The parties married in 2002, at which point they commenced cohabitation.[2]
[2] Mother’s affidavit, par 4
The eldest child was born in June 2006.[3]
[3] Mother’s affidavit, par 2
The parties separated on 10 July 2007.[4]
[4] Mother’s affidavit, par 5
Following separation the mother kept close control of the time spent by the eldest child with the father. She insisted on that time being supervised,[5] and although the father did not concede the necessity for it,[6] he acquiesced.
[5] Mother’s affidavit, pars 10-12
[6] Father’s affidavit, pars 14-18, 50, 62
Final parenting orders relating to the eldest child were made between the parties on a consensual basis some months later on 5 March 2008.[7] Those orders provided for:
a) The child to live with the mother (Order 1).
b) The parties to have shared responsibility for making decisions about the long-term care, welfare and development of the child (Order 2).
c) The child to spend time with the father on an escalating basis (Order 3), generally structured in increment periods of 6 months duration, which required almost immediate termination of supervised time (Order 3(a)), and the expansion of unsupervised time to alternate weekends once the child reached 3 years of age in June 2009 (Order 3(d)), and then more substantial and significant time once the child reached 3.5 years of age in December 2009.
[7] Mother’s affidavit, par 7
The parties did not adhere to the orders. At about the time that the orders were made, the parties began attempts at reconciliation and therefore negotiated the time that the child spent with the father on a reasonably amicable basis. The parties each kept records of the time that the child spent with the father thereafter.[8]
[8] Mother’s affidavit, par 18; Father’s affidavit, par 73-74
The parties’ attempts to reconcile ceased by August 2008[9] at the earliest and by 19 January 2009[10] at latest. By then the mother had conceived the youngest child, who was later born in April 2009.[11]
[9] Father’s affidavit, par 70
[10] Mother’s affidavit, par 28
[11] Mother’s affidavit, par 2
The father was not informed of the mother’s labour or the birth of the youngest child until some 36 hours after the event when he received a text message.[12]
[12] Father’s affidavit, par 78; Mother’s affidavit, par 30
Within weeks of the youngest child’s birth, on 2 May 2009, the eldest child spent unsupervised time with the father over a number of hours. The following day, as a result of a discussion between the mother and the child, the mother formed the belief that the father had sexually assaulted the child the previous day by inserting a pencil into her vagina causing a discharge of blood from her genitals.[13] The mother then caused the child to be examined successively by a general medical practitioner and a paediatrician.[14] Both of those examinations found no injury to, or abnormality in, the child’s genitals.
[13] Mother’s affidavit, pars 35-36
[14] Mother’s affidavit, pars 37-40
The allegation of suspected sexual abuse was made to the NSW Department of Human Services and referred to the Joint Investigation Response Team (“JIRT”) for investigation. The child was interviewed by JIRT officers on 5 May 2009.[15]
[15] Exhibits ICL1, ICL2
The father agreed to be interviewed by JIRT officers,[16] and that interview took place on 20 May 2009.[17] The father denied any sexual abuse of the child.
[16] Father’s affidavit, pars 106-107
[17] Exhibit ICL3
The prosecuting authorities decided not to pursue the allegation and desisted from prosecution of the father, regarding the allegation as unsubstantiated.
The mother acted to sever contact between the children and the father following the formation of her belief in the sexual assault allegation on 3 May 2009.
The father was dissatisfied with that situation and commenced the current proceedings by filing an Initiating Application on 17 August 2009. He did not seek to disturb the children’s residential arrangements. He proposed the allocation of equal shared parental responsibility for the children, and the implementation of a regime in which the children spent gradually increasing unsupervised time with him.
The mother filed her Response on 21 September 2009. She sought the allocation of sole parental responsibility for the children in her favour, an order that the children live with her, and orders that the children spend only restricted, supervised time with the father on an indefinite basis.
Interim parenting orders were made on 23 September 2009 providing for the children to spend only supervised time with the father. Although those orders were amended in some respects on 16 November 2009, the requirement for supervision of the children’s time with the father remained in place. Those interim orders prevailed until the trial.
The trial of the matter was commenced on 9 November 2010 and concluded on 12 November 2010. Judgment was reserved.
Allegation of sexual assault
The mother conceded in cross examination that the alleged sexual assault of the eldest child by the father was the principal issue in the proceedings. But for that allegation, the mother asserts that she would have happily allowed both children to spend frequent, unsupervised time with the father as from June 2009 in accordance with the regime marked out by the former consent orders reached in March 2008 concerning the eldest child. The issue therefore assumed overarching significance in the outcome of the proceedings.
The father is alleged to have sexually assaulted the eldest child on the morning of Saturday 2 May 2009 while the child spent time with the father.
The father has consistently denied the allegation to JIRT officers,[18] the single expert,[19] in his affidavit,[20] and in cross examination.
[18] Exhibit ICL3
[19] Single expert report, pages 8.1, 8.5, 10.5,
[20] Father’s affidavit, pars 83-90, 106-109, 117
No-one was present with the father and child in the critical restricted period of time in which the sexual assault is alleged to have occurred. The mother’s allegation hinges completely upon statements later made by the child to her and others.
The mother expressly acknowledged that to be the case. She said:
“I was not present so I can’t actually know. I rely on what my daughter told me. I believe her.”
The mother later said:
“I still sit here today believing that it [the sexual assault] happened. I have to believe her [the eldest child].”
Given the unswerving reliance of the mother upon the statements of the child it is necessary to carefully evaluate the evidence surrounding the incident to see whether her fears are well founded.
Perhaps unsurprisingly, it should be recognised at the outset that caution needs to be exercised in accepting the literal truth of words spoken by a child who has not even attained three years of age. The exercise of such caution in this case is not merely hypothetical. Both parties know that the eldest child’s utterances can be unreliable. The father said in evidence that the child often confused words, for example, by calling him “Mum” instead of “Dad”. The mother also told JIRT officers that the child sometimes says “No” when she means “Yes” and vice versa.[21]
[21] Exhibit ICL5
There are numerous facts about the events of 2 May 2009 which are either uncontentious or verified by independent and reliable evidence. They may be conveniently summarised as follows:
a)As at 2 May 2009, the child was just short of attaining three years of age.
b)The father collected the child from the mother’s home at 10.30 am on Saturday 2 May 2009.
c)He then drove the child to the paternal grandfather’s home, being a journey of around 15 minutes. That was the usual location the child was taken to play, so she could spend time with the father and members of the extended paternal family. The child’s toys were kept at that location.
d)On that occasion, the father was alone with the child at the paternal grandfather’s home.
e)While at that location the child and father played games, one of which was a game of hide and seek. In the course of that game the father hid from, and was found by, the child in the paternal grandfather’s bedroom. It was not uncommon for that game to be played at the paternal grandfather’s home, and it was not unusual for either the child or adults to hide in the bedroom.
f)The father and the child departed the paternal grandfather’s home and arrived at the McDonald’s Restaurant at 11.40 am, being only a short journey away.
g)Allowing for the estimated travel times, the period available for the commission of the sexual assault is therefore narrowed to between 10.45 am and 11.30 am.
h)Upon arrival at McDonald’s there was nothing untoward about the behaviour of either the father or the child. They were captured on surveillance video interacting warmly and normally. The child cuddled the father and sat on her seat without apparent genital discomfort, swinging her legs while she ate her food.
i)The child then went to play in the restaurant play gym area, where she played for some time.
j)The child urinated in her pants while playing in the play area. The father then carried her to the car and changed her clothes. The child’s wet underwear and pants were placed into a plastic bag, and then into the child’s backpack, which was returned to the mother with the child.
k)The child and her clothing were returned punctually by the father to the mother at 1.00 pm.
l)Upon the child’s return to the mother, the father informed the mother about the child’s urination in her pants. The mother was curious about that incident because the child had been toilet trained for some months, but there was nothing suspicious about the behaviour of either the father or the child at that time.
m)The father had not engaged in any prior conduct designed to groom or prime the child for sexual molestation.
The mother was not alarmed until more than 24 hours after the child’s return to her. Over that period the child had complained to the mother several times about a burning sensation in her “wee wee” when she went to the toilet.[22]
[22] Mother’s affidavit, pars 34-35
The mother had a series of conversations with the child over that period culminating in the child making a statement to the mother at about 5.00 pm on 3 May 2009, which the mother understandably found very disturbing. It is impossible to now know the actual conversation that transpired between the mother and the child because there are different versions of it contained in the mother’s report to JIRT on 5 May 2009,[23] in the mother’s affidavit sworn on 9 October 2010,[24] in the mother’s oral evidence during cross examination on 11 November 2010, in the maternal grandmother’s affidavit sworn on 7 October 2010,[25] and in the maternal grandmother’s oral evidence during cross examination on 11 November 2010.
[23] Exhibit ICL5
[24] Mother’s affidavit, pars 34-36
[25] Maternal grandmother’s affidavit, par 3
The mother said that she made herself notes of the conversation on her computer, but she could not remember whether she made the notes on the evening of the conversation or the following morning. The notes were never produced in evidence, but the mother believes that she had the notes with her when she spoke to the JIRT officers two days later on 5 May 2009. I therefore impute that the mother’s report of the conversation to those officers most accurately reflects the actual conversation she had with the child.
The common thread of the conversation was a report by the child to the mother in terms to the following effect:[26]
Child: “There’s a hole in my wee wee, you’ll have to fix it.”
Mother: “…Mummy has a hole in her wee wee. That’s how we do our wee. That’s what little girls have.”
(Upon further complaint by the child about soreness or burning of the wee wee, the conversation continued as follows)
Mother: “Why is it sore?”
Child: “Daddy put a pencil in my hole.”
Mother: “When did he do that?”
Child: “At Pa’s”
[26] Exhibit ICL5
Although not apparently disclosed by the mother to JIRT officers, the mother alleges that later that same evening, whilst using the toilet and being questioned about the amount of toilet paper used by the child, further conversation to the following effect took place:[27]
Child: “Daddy had to use lots of toilet paper to clean the blood up from my wee wee. That bleeding has stopped now from the hole.”
Mother: “Why was your wee wee bleeding?”
Child: “Daddy, my daddy, not your dad, my dad [first name] put a pencil in it.”
[27] Mother’s affidavit, par 36
The mother interpreted the child’s statements to collectively mean that whilst at the paternal grandfather’s on 2 May 2009 the father penetrated the child’s vagina with a pencil and caused sufficient bleeding from the child’s vagina to necessitate the father’s use of a large quantity of toilet paper to clean up the blood.
The mother immediately called the maternal grandmother and reported the conversation to her, but notably told the maternal grandmother at the time of that call “I don’t know what to make of it”,[28] suggesting that she was not then prepared to accept the literal truth of the words spoken by the child. If that was the mother’s state of mind at that time, her attitude subsequently hardened.
[28] Maternal grandmother’s affidavit, par 3
Following that conversation the maternal grandmother immediately attended the mother’s house, where she quizzed the child about her “sore wee wee” and elicited a response that “daddy did it”.[29]
[29] Maternal grandmother’s affidavit, par 3
The mother and maternal grandmother both took the child to see a medical general practitioner, Dr B, at about 3.00 pm the following day, being 4 May 2009. The purpose of the visit was to investigate the child’s sensation of soreness and burning of the genitalia, and the prospect of her vagina having been penetrated and injured. The maternal grandmother confirmed in cross examination that the child was told that she was being taken to Dr B to check her “sore wee wee”.
Again there are different versions of the conversation that occurred with Dr B, being those given by the doctor to JIRT officers[30] and in her affidavit,[31] and by the mother[32] and maternal grandmother[33] in their affidavits.
[30] Exhibit ICL6
[31] Affidavit of Dr B, Annexure A
[32] Mother’s affidavit, par 37
[33] Maternal grandmother’s affidavit, par 4
Dr B said that she made contemporaneous notes of the consultation on the surgery computer. The notes recorded the history provided by the mother and the comments made by the child.[34] Those notes are probably the most accurate version of what transpired during the consultation.
[34] Affidavit of Dr B, Annexure A
It is clear from the doctor’s evidence that the mother informed her, in the absence of the child, that the child had recently complained of soreness to her “wee wee”, which the mother attributed to penetration of her vagina with a pencil by the father.
When the doctor shortly afterwards began her examination of the child it was understandably necessary for the doctor to explain the need for physical examination of her genitals. For that reason their conversation occurred in the following terms:
Doctor: “Have you got a sore wee wee?”
Child: “Yes. [Father’s first name] put a pencil in there”
There was some initial uncertainty about the name of the person the child used, but the mother and maternal grandmother clarified the word used by the child to be the father’s first name. The clarification was phonetically similar to the word the doctor heard used by the child. I am satisfied that the child did in fact refer to the father at that point.
On examination, the doctor found no abnormality of, nor injury to, the child’s genitalia.
The doctor agreed that, given the reported discharge of a large amount of blood from the child’s vagina on 2 May 2009, she would have expected continued spotting of blood on the child’s underwear over the ensuing day or so. The single expert agreed with that opinion. It is important to note that there is no evidence of any blood on the child’s wet underwear or clothing returned by the father to the mother on 2 May 2009, and no evidence of any blood on the child’s fresh underwear following her return to the mother.
The discharge of a large amount of blood from her genitals was an integral part of the child’s story. If that part of her story is false it raises grave concerns about the reliability of the remainder of the child’s story. If that part of her story is true, it is really irreconcilable with the uncontentious evidence about the lack of subsequent blood spotting in circumstances where experts opine that should have occurred.
Dr B professes no expertise in assessing the reliability of statements of young children. She expressly said that she would defer to the expertise of the single expert psychiatrist on issues such as that. Dr B conceded the obvious point that she was not undertaking any inquiry about whether the child was sexually abused. Rather, she recognised that her role was limited to the conduct of a physical examination to assess any overt injury. There was no injury. Accordingly, she properly acknowledged that, although it remained possible the child had been sexually abused, she could not and did not conclude that any such sexual abuse had in fact occurred. To the extent that the mother and maternal grandmother asserted reliance upon Dr B for the formation of their beliefs in the occurrence of the abuse, the doctor implicitly encouraged them to abandon reliance upon her opinion.
The Sexual Assault Service was telephoned by Dr B, following which an appointment was made for the mother and child to consult with JIRT the next day, being 5 May 2009. The nature of the mother’s report to JIRT has already been discussed.
Following the mother’s discussion with JIRT officers, a recorded interview was then conducted with the child. The audio/visual recording of that interview is in evidence,[35] as is the transcript of the interview.[36]
[35] Exhibit ICL1
[36] Exhibit ICL2
The interview was conducted by trained JIRT officers, who were careful not to ask leading or loaded questions of the child. The interview elicited no disclosure of abuse until leading questions were deliberately asked at the conclusion of the interview in order to see what that may provoke. Careful analysis of the interview yields the following excerpts and observations
a)The child did not know the difference between the truth and a lie:
Officer: “I’m going to talk to you about telling a truth and a lie. Do you know what a lie is?
Child: “Yes you lie down on it.”
b)The child is capable of extravagant fantasy:
Officer: “Mummy told me you went to see a Dr. Tell me about the Dr what happened (sic)?”
Child: “She pulled a baby out like a big snake.”
c)Remembering that the child’s baby brother was born less than a month before, the child was seemingly pre-occupied with babies, as she mentioned them several times, even without a rational context:
Officer: “How brought you here today (sic)?”
Child: “Mum”
Officer: “Anyone else?”
Child: “No. A baby.”
(that was inaccurate because the maternal grandmother also attended[37])
[37] Maternal grandmother’s affidavit, par 5
(and a little later)
Officer: “Why did you go to the Dr?”
Child: “Cause there was a baby popping out.”
Officer: “There was a baby popping out”
Child: “[O] was popping. There was a baby, that’s why.”
(and a little later)
Officer: “What use your belly button for (sic)?”
Child: “Need to put your baby out.”
d) The child expressly disavowed being touched around the genitals by anyone other than the mother:
Officer: “Who touches you there? (after identifying the vulva on a picture)”
Child: “Mum”
Officer: “Anyone else touches you there?”
Child: “No”
In the absence of any disclosure after sustained questioning the interview was temporarily suspended. Upon resumption, the JIRT officers asked questions of the child directly related to her “wee wee”, which elicited the following selected contradictory and bizarre exchanges:
Officer: “Anyone touch your wee wee?”
Child: “No they don’t.”
(and later)
Officer: “…mum told me that you had a sore wee wee.”
Child: “Yeah.”
Officer: “Tell me more about that.”
Child: “Yeah I got a sore wee wee.”
Officer: “Tell me more.”
(and later)
Child: “Daddy put a pencil inside and he…”
Officer: “Daddy put a pencil inside. Tell me more about that.”
Child: “He find…find another fido…It was just a little tiny pencil. It was in my hand and it was an angel.”
Officer: “Where did you get the pencil from?”
Child: “Pa’s bedroom.”
(and later)
Officer: “Where’s the pencil now?”
Child: “It’s at my house.”
(and later)
Officer: “Who put it in your wee wee?”
Child: “…my [father’s first name].”
Officer: “Who took it out of your wee wee?”
Child: “Mum did.”
(and later)
Officer: “Who was there when the pencil was put in your wee wee?”
Child: “[Father’s first name] and mum.”
Several things are evident from that interview.
Firstly, the child makes no disclosure of sexual abuse when asked non-leading questions under carefully controlled conditions. In fact, the child expressly denied more than once that the father had touched her genitals.
Secondly, the child speaks freely of the father inserting a pencil into her genitals when primed with questions about a “sore wee wee”. The child expressly denied that the father touched her genitals until after she was asked about her “sore wee wee” upon resumption of the interview. Interestingly, they were the same questions she was asked by the maternal grandmother, Dr B and Dr T as the preface to the child’s earlier disclosures to each of those persons.
Thirdly, the child has no concept of the difference between truth, fantasy and fabrication. The child’s statements are at least in part pure fantasy. Even if the mother genuinely believes that the father inserted a pencil into the child’s vagina, the mother has no option but to admit that the child is utterly unreliable in asserting that the mother was present when that happened, that the mother was the one who removed the pencil from the child’s vagina, and that the same pencil is now at the child’s home. The mother has no acceptable explanation for why she is prepared to accept as truthful the child’s statements that implicate the father, but unprepared to accept the child’s statements that either exculpate the father or implicate her. The inconvenient truth for the mother is that the child is simply unreliable.
Fourthly, the child seemed fascinated at that time with genitals, which were the central theme of her discussion about babies, birth, and urination.
The child has also made inconsistent statements to persons other than the JIRT officers. Ms G, the sister of the mother, heard the eldest child say on 25 August 2009 “My naughty dad put a pencil in my bottom.”[38] The child had always associated the pencil insertion with her “wee wee”, not her “bottom”. The child knew the difference between her “wee wee”, which was her vagina, and her “bottom”, which was her anus. The inconsistency between that statement to the mother’s sister and statements made by the child to others about her “wee wee” is unexplained. On the evidence, there is no possibility of two separate incidents of sexual assault, so whatever the explanation for the inconsistency, it is inescapable that the child’s statements are unreliable.
[38] Affidavit of Ms G, par 4
The Sexual Assault Service made arrangements for the child to be examined by Dr T, paediatrician, at the Sexual Assault Clinic.[39] That examination occurred on the afternoon of 5 May 2009, following the JIRT interview. A proof of evidence of Dr T was tendered without the need for the doctor to be cross examined.[40]
[39] Mother’s affidavit, par 39
[40] Exhibit ICL7
Dr T found no abnormality of, or injury to, the child’s genitals. The doctor opined that any injury to the mucosal surface of the genitals would likely heal remarkably quickly. An abrasion or lesion to the mucosal surface could heal within 48 hours. However, injury to the genitals involving bleeding would possibly cause discomfort which would be obvious in observation of the patient. Although expressed as a possibility rather than a probability, that opinion about evident discomfort is still significant given two pieces of evidence – the large amount of blood the child said she shed, which tends to indicate more than a trifling abrasion or lesion, and the absolute absence of any discomfort exhibited by the child upon her arrival and during her stay at the McDonalds restaurant on the morning of 2 May 2009.
There is no evidence from Dr T about the comments made by the child to her at the time of consultation. The mother gives evidence of such conversation in her affidavit,[41] and the maternal grandmother gave evidence about it in cross examination. Importantly, both the mother and the maternal grandmother confirm that Dr T asked the child if her “wee wee” was sore as a preliminary question before the child made her similar disclosure to the doctor.
[41] Mother’s affidavit, par 40
At least some of the complaints attributed to the child suggest that the child was experiencing a burning sensation when urinating. Dr B agreed that such a symptom often indicates the presence of a urinary tract infection. Although the evidence is unclear as to the circumstances, it seems that the Sexual Assault Service referred the child for a urine screen on 5 May 2009 to check for such an infection. The mother said in evidence that she was informed that the urine sample was contaminated and so there was no conclusive result. However, the test report dated 6 May 2009 was tendered[42] and the results related by telephone to Dr B, who formed the view that the result of the test was negative. The child’s complaint of a burning sensation on urination is probably not due to her having a urinary tract infection.
[42] Exhibit F3
All of the evidence described was assessed and considered by the single expert, whose ultimate opinion was that the sexual abuse did not occur. It was apparent from the evidence of the single expert that her conclusion rested on several factors.
The single expert acknowledged the extremely serious nature of the alleged sexual abuse, which involved a very young child, a biological parent, penetration of the child’s vagina, the use of an implement, and the causation of physical injury. The single expert contended that the father “would need to be in a very disturbed place”, in terms of his psychological condition, to perpetrate such an act. The single expert saw no evidence of any such psychological disturbance in the father which might account for him acting that way.
The single expert also noted as an important consideration the inconsistency of the alleged sexual abuse and the state of the reciprocal loving and caring relationship that existed between the father and the child. The two concepts were at least incongruous, and more probably completely alien.
The single expert believed that the relaxed presentation of both the father and the child at the McDonald’s restaurant on the morning of 2 May 2009 was quite inconsistent with the alleged sexual assault which could only possibly have occurred a short time before their arrival. The single expert said that the child would have exhibited discomfort by shifting in her seat and fiddling with her genitals had she been abused in the manner alleged shortly before.
Given the single expert’s disbelief in the veracity of the sexual assault allegation, she was asked to comment upon the reasons for why the child might have made such allegations to the mother, maternal grandmother, and doctors.
The single expert acknowledged the existence of a body of renowned research about the unreliability of young children’s statements. The research notes that statements of young children are easily led, albeit inadvertently, by loaded questions posed by adults. The single expert thought that phenomenon was apt in this case because the child’s disclosures about the father having inserted a pencil into her vagina were all associated with questions posed to her about her “sore wee wee”. Consequently, whenever the child was pressed about her “sore wee wee” it evoked an answer from her about the father and the pencil. The repetition of that story did not improve its reliability. An untrue statement remains an untrue statement no matter how many times it is repeated.
The fact that the child’s story was replete with untruths about the mother’s involvement in her sexual abuse necessarily calls into question the truth of the original disclosure by the child to the mother. For reasons about which it is impossible to be sure, the child surely told an untruth to JIRT officers about the mother being present and removing the pencil from her vagina. Similarly, for reasons about which it is impossible to be sure, the child’s statement about the father inserting the pencil into her vagina causing her to bleed profusely is also probably an untruth.
The single expert posited a theory about the child’s original disclosure. The single expert believes that the mother was pre-disposed to anxiety about the children being left in the care of the father and members of the paternal family. There were a number of reasons for that. The mother had particularly negative views about the father, considered his parenting capacity to be inferior to her own, thought that the children had not bonded with the father, and was fearful of the concept of inter-generational sexual abuse. The mother was aware that the paternal great grandfather had sexually abused a biological daughter,[43] and she was suspicious of the paternal grandfather’s invasion of her own privacy,[44] both of which facts led the mother to wonder whether the propensity for improper sexual conduct was inter-generational and might infect the relationship between the children and the father. As an indication of her concern, shortly following separation the mother raised the issue of the children’s time with the father being supervised by a female adult. The single expert regarded those facts as evidence of the mother’s hyper-vigilance.
[43] Single expert report, page 11.2
[44] Single expert report, page 5.5
In the context of that anxiety, the mother was intrigued by the child being returned to her on 2 May 2009 having wet herself, despite having been toilet trained for months, and complaining of a “sore wee wee”. The mother’s intrigue led her to pose questions to the child over the next 24 hours. The single expert believes that, by the nature of her questions, the mother inadvertently led the child to forge some nexus between the soreness of her genitals and something done to her genitals by the father. Thereafter, whenever the child was asked the same cue questions about a “sore wee wee”, the child resorted to the same explanation. The single expert explained that children can “run with a story” over a long period of time if given the same cues. The idea becomes implanted and the story assumes a life of its own. Tellingly, when the familiar cue questions were deliberately not posed to the child by JIRT officers there was no disclosure.
The single expert was unsurprised that the child linked the father to the soreness of her genitals in the context of the highly conflicted relationship between the parties, of which the child would surely have been conscious. The single expert thought it plausible that the child had explored her own body in pursuit of her interest in genitals and the birth of babies, perhaps penetrated herself with an object like a pencil, and maybe caused herself pain or discomfort. If the child was aware that the mother was seeking from her an explanation for the genital soreness of which she complained then attributing the soreness to the other disliked parent might be expected.
It is uncontentious that the maternal grandmother has observed the child on several occasions trying to insert objects into her vagina,[45] and that the mother has seen the child touching herself around the genitals.[46] The mother and maternal grandmother seem to believe that the child is exhibiting that behaviour because of the manner in which they believe she was previously abused by the father, but that is mere conjecture by them. It might simply be exploratory behaviour in which the child engages without any experience at all of penetration by the father. The inference drawn by the mother and maternal grandmother is no stronger than the alternate hypothesis.
[45] Maternal grandmother’s affidavit, par 16
[46] Mother’s affidavit, par 65
Although significant to the mother, the return of the child to incontinence was unremarkable to the single expert. She gave uncontradicted evidence that young children often revert to incontinence, despite established toilet training, following the birth of a younger sibling. That was evident in this case from the remarks made by the child during her interview with JIRT officers. The child was well aware of the recent birth of her brother.
Although the mother refuses to accept the proposition that leading questions are prone to elicit skewed answers from young children, I accept the evidence of the single expert about that phenomenon. The mother and grandmother refuse to acknowledge the neutrality of the interview technique employed by the JIRT officers. They are incensed that the JIRT officers did not elicit positive disclosure of sexual abuse from the child,[47] when the leading questions posed by them and Drs B and T did extract such disclosures. Their displeasure has resulted in official complaints by them against the JIRT officers.[48] The mother and maternal grandmother seem disappointed that their beliefs have not been vindicated, from which it might be imputed that they would prefer it proven that the child was sexually assaulted. Neither the mother nor the maternal grandmother displayed any sense of relief that their beliefs may be wrong and that the child may not have been abused at all.
[47] Single expert report, pages 5.9, 6.1
[48] Maternal grandmother’s affidavit, par 7
Although the mother has alleged the commission of a heinous crime against the father, the Court should not divert its attention from the task imposed by the Act, which is to reach a parenting outcome on the evidence which is in the best interests of the children.
As the High Court said in M & M (1988) 166 CLR 69 at 76-77:
…it is a mistake to think that the Family Court is under the same duty to resolve in a definitive way the disputed allegation of sexual abuse as a court exercising criminal jurisdiction would be if it were trying the party for a criminal offence. Proceedings for custody or access are not disputes inter partes in the ordinary sense of that expression: Reynolds v Reynolds (1973) 47 ALJR 499; 1 ALR 318: McKee v McKee [1951] AC 352 at pp 364-365. In proceedings of that kind the court is not enforcing a parental right of custody or right to access. The court is concerned to make such an order for custody or access which will in the opinion of the court best promote and protect the interests of the child. In deciding what order it should make the court will give very great weight to the importance of maintaining parental ties, not so much because parents have a right to custody or access, but because it is prima facie in a child’s interests to maintain the filial relationship with both parents: cf J v Lieschke (1987) 162 CLR 447 at pp 450, 458, 462, 463-464.
Viewed in this setting, the resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the court’s determination of what is in the best interests of the child. The Family Court’s consideration of the paramount issue which it is enjoined to decide cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse. The Family Court’s wide-ranging discretion to decide what is in the child’s best interests cannot be qualified by requiring the court to try the case as if it were no more than a contest between the parents to be decided solely by reference to the acceptance or rejection of the allegation of sexual abuse on the balance of probabilities.
In considering an allegation of sexual abuse, the court should not make a positive finding that the allegation is true unless the court is so satisfied according to the civil standard of proof, with due regard for the factors mentioned in Briginshaw v Briginshaw (1938) 60 CLR 336 at 362…
…in the nature of things there will be very many cases, such as the present case, in which the court cannot confidently make a finding that sexual abuse has taken place. And there are strong practical family reasons why the court should refrain from making a positive finding that sexual abuse has actually taken place unless it is impelled by the particular circumstances of the case to do so….
In resolving the wider issue the court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assess the magnitude of that risk.
That commentary has been discussed and adopted by the Full Court of the Family Court on many occasions since.
In B & B (1993) FLC 92-357 the Full Court said at 79,778:
The test propounded by the High Court in M & M and which is authoritative in this jurisdiction is “that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse”.
The “unacceptable risk” test is therefore the standard used by the Family Court to “achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access”. In other words, where the court makes a finding of unacceptable risk it is a finding that the risk of harm to the children in having access with a parent outweighs the possible benefits to them from that access.
The Full Court in Napier & Hepburn (2006) FLC 93-303 again emphasised the distinction between a finding of sexual abuse and a finding of unacceptable risk, referring to earlier authorities with approbation, saying at 81,117:
…the failure to be satisfied of the occurrence of sexual abuse on the balance of probabilities does not of itself answer the question whether an unacceptable risk can be said to exist. There is no requirement to ask whether the evidence satisfies a balance of probabilities finding in favour of abuse, although that may nevertheless be useful in some cases. There is, however, a requirement to ask whether the evidence establishes an unacceptable risk.
The observations of the Full Court in Napier & Hepburn were endorsed by the Full Court in Potter & Potter (2007) FLC 93-326 at 81,636-81,637.
The application of those principles to the evidence leads to two findings. I am not satisfied on the evidence that the father sexually abused the eldest child. Nor am I satisfied on the evidence that the father poses an unacceptable risk of sexual abuse to either child. The father’s denials were convincing, the child’s statements were demonstrably false in material respects, and the single expert posited plausible and logical explanations for the child’s unreliability which were not seriously challenged.
By the conclusion of the evidence the mother’s counsel conceded that the evidence carried insufficient weight to prove that the father had sexually abused the eldest child. Although the mother’s counsel continued to press for a finding of unacceptable risk, there was no evidence to found such a risk, apart from that evidence which was already conceded to be unpersuasive.
Although the father believes that the history of disclosure by the child to her is a tissue of lies fabricated by the mother to cause him harm,[49] I do not accept his belief as factual. As with the single expert, I do not accept that the mother fabricated the allegations from nothing. I accept, as did the single expert, that the child did make concerning statements to the mother. The mother reacted sharply to the revelation and the child then reacted to the mother’s reaction. The predicament of mutual anxiety only compounded when the doctors were involved and questioned the child in the same leading manner as the mother and maternal grandmother.
[49] Father’s affidavit, pars 111, 114, Annexure V
The single expert explained that it is as psychologically harmful for the child to grow up falsely believing that she was sexually assaulted as it is for her to have actually been sexually abused. In light of the fervently expressed belief in the sexual assault allegations by both the mother and maternal grandmother, it is to be hoped that they each reflect upon that expert opinion at some length.
Summary of parenting law
Orders in respect of children are regulated under Part VII of the Act, in which the meaning of a “parenting order” is defined (s 64B).
When called upon to make a parenting order, the Court is enjoined to bear in mind both the objects of the legislation and the principles which underpin those objects (s 60B) in determining the nature of the parenting orders which ought properly be made (s 65D).
When making parenting orders the Court is mandated to regard the child’s best interests as the paramount consideration (ss 60CA, 65AA). The Act specifies with precision the criteria which the Court must contemplate in arriving at a conclusion as to what is in the best interests of the child (s 60CC).
The Court is required to apply a rebuttable presumption that it is in the best interests of a child for the child’s parents to be allocated equal shared parental responsibility for the child (s 61DA). Parental responsibility is defined to encompass all duties, powers, responsibilities and authority conferred by law upon parents (s 61B). The legislation dictates the manner in which shared parental responsibility is to be exercised in respect of decisions relating to major long-term issues concerning the child (s 65DAC), being matters such as education, religion, culture, health, name, and changed living arrangements (s 4), and also in respect of decisions which do not relate to such major long-term issues (s 65DAE).
However, the presumption of equal shared parental responsibility does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence (s 61DA(2)), and the presumption may be rebutted if the Court is satisfied that it would not be in the best interests of the child for the parents to have equal shared parental responsibility for the child (s 61DA(4)). The legislation makes it clear that the presumption applies to the allocation of parental responsibility and is not a presumption about the amount of time the child should spend with each parent.
In the event that an order is made allocating equal shared parental responsibility, either presumptively or otherwise, the Court is then obliged to consider both the advisability and practicability of the child spending equal, or alternatively, substantial and significant time with each of the parents (s 65DAA).
If the presumption of equal shared parental responsibility does not apply, or is successfully rebutted, and a different form of parental responsibility order is made, then the Court’s discretion is at large in the determination of the parenting orders warranted, although that discretion must still be exercised within the parameters of the prevailing legislative provisions.
The principles outlined above have been authoritatively examined in Goode & Goode (2006) FLC 93-286 and MRR v GR (2010) 240 CLR 461.
Best interests of the children – primary considerations
As the Full Court said in A v A (1998) FLC 92-800 (at [3.30] – [3.37]), it is an entirely artificial exercise to carry out an analysis of the statutory factors affecting a child’s best interests in isolation from the conclusions reached about the existence of any unacceptable risk of abuse to the child. To do so would sideline the major factor in the case. A v A was a case in which a finding of an existent unacceptable risk was made. Although this case is one in which the opposite finding has been reached, the principle is the same. I will therefore bear in mind the findings already reached when reviewing the criteria under s 60CC of the Act.
Section 60CC(2)(a)
There was no dispute at all that the children enjoy meaningful relationships with the mother. They are securely attached to the mother, who has been their primary caregiver. Self-evidently, it will be beneficial for the children to retain those relationships with the mother. Nobody suggests otherwise.
Conversely, there was significant dispute about the nature of the relationships between the children and the father.
The mother asserted to the single expert, and repeated in cross examination, that the father was detached from the children and had not bonded with them.[50] Those sentiments were also expressed by the maternal grandmother to the single expert and in evidence. She believes that the father has never bonded with the children and is emotionally abusive by paying them little attention.[51]
[50] Single expert report, page 7.1
[51] Single expert report, page 11.3
The beliefs of the mother and maternal grandmother do not coincide with the preponderance of evidence. Despite the pronounced restriction of the time spent by the children with the father over the preceding 12 months, the single expert found the children to engage happily with the father at the time of her consultation with them.[52] Those observations are consistent with evidence adduced by the father, about which he was not challenged in cross examination, to the effect that the eldest child is excited to see him,[53] reacts warmly towards him,[54] and expresses a wish to see more of him.[55] The father’s evidence is corroborated by the paternal grandfather,[56] the paternal grandfather’s partner,[57] some photographs,[58] the independent records of the supervised visits compiled by Relationships Australia,[59] and even by one of the supervisors appointed by the mother.[60]
[52] Single expert report, pages 3-4, 14.1, 14.4
[53] Father’s affidavit, pars 139, 152
[54] Father’s affidavit, pars 154, 213, 214
[55] Father’s affidavit, pars 153, 155, 161, 170, 213
[56] Paternal grandfather’s affidavit, par 12
[57] Affidavit of Ms W, par 6
[58] Exhibit F1
[59] Exhibit F2
[60] Affidavit of Ms K, pars 3, 16-18
The single expert was satisfied that the eldest child had a relatively secure attachment to the father, despite the factual conflict between the parties over some aspects of that issue.[61] It necessarily follows that the child will benefit from retention and promotion of her relationship with the father.
[61] Single expert report, page 16.4
The mother alleges that the eldest child has expressed and demonstrated reluctance to spend time with the father.[62] The single expert explains such behaviour by the likelihood that the child has become very sensitive to the mother’s emotional state[63] and the child’s reluctance being a reaction to her awareness of and subjection to the pressure of conflict between her parents and the extended maternal and paternal families.[64]
[62] Mother’s affidavit, pars 20, 31, 63, 85
[63] Single expert report, page 14.7
[64] Single expert report, page 14.9
The single expert considers it will be beneficial for the youngest child to spend much more frequent time with the father, which is a vital aspect of his development, and of which he has so far been deprived.[65]
[65] Single expert report, page 14.3
I accept the evidence of the single expert. It was reasoned and logical and was not the subject of any real challenge by the mother.
The children will benefit by continuing to develop their meaningful relationships with both parents, which objective the Court should strive to attain. That objective would be seriously imperilled by permanently restricting the children’s interaction with the father to only supervised visits at a contact centre, irrespective of the frequency.
Section 60CC(2)(b)
The absence of any need to protect the children from any form of harm through their exposure to sexual abuse has already been comprehensively discussed in these reasons.
It was not contended that the children had been harmed, or were at risk of harm, through subjection or exposure to any other form of abuse, neglect, or family violence.
The mother did adduce evidence of violence perpetrated upon her by the father in the past, but since it was not alleged that either of the children were exposed to it, the issue will be discussed as an additional consideration under s 60CC(3)(j) of the Act.
Best interests of the children – additional considerations
Section 60CC(3)(a)
The views of the children are irrelevant to the outcome of the proceedings.
The eldest child is too young and immature to appreciate the import of any view she expresses, and so no weight can be attributed to her views.
The youngest child is simply too young to even express a view.
Section 60CC(3)(b)
The nature of the children’s relationships with the parties has already been addressed as a primary consideration under s 60CC(2)(a) of the Act. There is nothing to add.
The children have a close relationship with the maternal grandmother. The father and paternal family do not dispute that.
I also find that the children have a close relationship with the paternal grandfather and his partner. The mother did not submit to the contrary.
It is important for the children to retain and enhance their relationships with the members of the extended maternal and paternal families.
Section 60CC(3)(c)
The orders necessarily provide for the children to remain living with the mother, because the case was contested on the basis that that outcome was immutable. Because the children’s residence with the mother is retained, the fact that the mother will likely find it enormously difficult to facilitate and encourage a close and continuing relationship between the children and the father loses significance in the outcome of these proceedings. Notwithstanding, it is an issue that needs to be addressed.
The mother and maternal grandmother both said categorically in cross examination that they continue to honestly believe that the father sexually assaulted the eldest child on 2 May 2009. They are dismissive of any other contrary evidence. They will hold to that belief irrespective of the outcome of these proceedings. They both said so.
Although the mother and maternal grandmother also both said that they will accept the judgment of the Court and abide by its orders, I expect that they will have inordinate difficulty adhering to that sentiment because of their honestly held beliefs.
There is no doubt that they each understand the importance of promoting the children’s relationships with the father and extended paternal family in the face of a conclusion by the Court that the father does not pose an unacceptable risk of abuse to the children, even though such a finding would contradict their own beliefs. If they fail to faithfully adhere to the orders and genuinely promote those relationships, and the relationships deteriorate as a consequence, the children will almost certainly suffer emotional harm. It could be that in such circumstances the father would bring fresh proceedings seeking a change in the children’s residential arrangements consonant with the principles discussed in Re David (1997) FLC 92-776 at 84,574-84,575.
I have no doubt that the father will continue to fulfil his willingness and ability to facilitate and encourage close and continuing relationships between the children and the mother. Were there any need for an example of his capacity to do so, one need only look to his decision not to challenge the mother’s position as residential carer of the children despite the curtailment of his interaction with the children over the last 18 months.
Section 60CC(3)(d)
Any change in the children’s residential arrangements at this time would surely bring about substantial emotional upheaval for them. The mother has undoubtedly been their primary carer since birth. Their time with the father over the last 18 months has been very restricted. No doubt the parties recognised those facts in mutually submitting that the children’s residence should remain with the mother.
The changes to the circumstances in which the children spend time with the father pursuant to the orders are unlikely to have any deleterious effect upon the children. The orders are consistent with the opinion of the single expert and closely resemble the orders proposed by the Independent Children’s Lawyer, and to a lesser extent the father. The orders are also consistent with the regime proposed by the mother in the alternative, in the event that her contention of unacceptable risk was not made out.
Section 60CC(3)(e)
There is no practical difficulty or expense in implementing the orders. The parties both live in reasonably close proximity within Newcastle and neither proposes moving away from Newcastle.
Section 60CC(3)(f)
I find that the father has the capacity to provide for all needs of the children, including their emotional and intellectual needs.
Save for one caveat, I find that the mother also has the capacity to provide for all the needs of the children. As already explained, I remain concerned about the mother’s capacity to properly cater to the emotional need of the children to enjoy meaningful relationships with the father.
Section 60CC(3)(g)
The mother understandably wishes to inculcate the children with their Greek heritage.[66] Since they will remain living with her they will have every chance to do so.
[66] Mother’s affidavit, par 95
Otherwise, there is nothing about the maturity, sex, lifestyle, or background of the parties or children that bears upon the outcome of the proceedings.
Section 60CC(3)(h)
The parties do not identify themselves or the children as Indigenous Australian.
Section 60CC(3)(i)
There can be no doubt that, absent any risk of abuse posed by the father to the children, the father demonstrates a proper attitude to the children and the responsibilities of parenthood.
The mother asserted that the father does not do so because he has not bonded with the children and pays them insufficient attention. Reasons have already been given for why that opinion is erroneous.
Regrettably, the negative attitudes held by the mother and maternal grandmother towards the father will potentially influence the children’s views. The mother naively believes that the children will be oblivious to her statements, tone, and facial expressions. Despite the mother’s belief that she always talks positively of the father to the children, I regard it as more probable that the children will intuitively perceive the mother’s disdain for him. For her part, the maternal grandmother is openly critical of the father with the children. She admits telling the eldest child that they will keep her safe from the father,[67] which can only impress upon the child the notion that the father is dangerous.
[67] Maternal grandmother’s affidavit, par 14
The evidence contains objective indicators of the mother’s contentment with an estrangement between the children and the father.
Despite her tender age, the eldest child often refers to the father by his first name rather than by the term “Dad”. In her affidavit the mother asserted that happened more often that not,[68] but when she was challenged in cross examination the mother inconsistently said that the eldest child mostly refers to the father as “Dad”. The mother says neither she nor the maternal grandmother have encouraged the eldest child to refer to the father by his first name, but even if that is true, it follows from the child’s predominant use of the father’s first name that the mother has been unable to successfully discourage her from that practice. Permitting the child to refer to the father by his first name is a subtle way of allowing the child to develop an idea that the father does not have a parental relationship with her. Despite a faint attempt by the mother to assert that she was unfazed by the child occasionally referring to her by her first name rather than the term “Mum”, I expect that the mother would prefer to be known by the children as “Mum” just as the father prefers to be known as “Dad”.
[68] Mother’s affidavit, par 53
The mother was also compelled to concede in cross examination that she had lodged a pre-school enrolment form for the eldest child in June 2009 which omitted the father’s details as a contact person for the child. Instead, the mother inserted the details of the maternal grandmother as the alternate contact person for the child.
When the children began spending supervised time with the father under the interim parenting orders the father made a request of the mother, passed through the representatives of the contact centre, that his partner be able to participate in the sessions. The mother admits that she flatly refused. She offered no explanation other than that she did not know the father’s partner, which she considered justified her veto.
There can be no dispute that the mother has taken every opportunity to assert her superiority and marginalise the father in matters related to parenting of the children.
The failure of the mother and maternal grandmother to acknowledge the damage their conduct can wreak upon the children’s emotional health is a serious shortcoming in their attitudes to the children and the responsibilities of parenthood.
Accepting that the mother’s allegation of sexual abuse against the father is an honestly held belief, then her proposal to guard against the alleged risk of abuse posed by the father to the children by imposing supervision upon the time they spend with him was a reasonable proposal. However, she will now need to demonstrate a proper attitude to the children and the responsibilities of parenthood by accepting the Court’s finding that the father does not pose an unacceptable risk of abuse to the children and faithfully promote the children’s relationships with the father.
Section 60CC(3)(j)
The Form 4 Notice of Child Abuse or Family Violence filed by the mother in these proceedings on 20 November 2009 raised only the alleged sexual abuse of the eldest child. The Notice was completely silent about episodes of family violence.
The mother also conceded that all of her allegations of family violence against the father in these proceedings related to conduct which pre-dated the making of consensual final parenting orders concerning the eldest child in March 2008. Those orders provided for the father to have an equal role in making major decisions in the child’s life, and for the child to ultimately spend protracted, unsupervised time with the father.
In those circumstances, the father forcefully submitted that the allegations of family violence were really of little moment to the mother in the outcome of the proceedings, because the past violence had not induced her to object to regular, frequent, and unsupervised interaction between the father and the eldest child in March 2008. His submission was explicitly conceded by the mother, whose counsel admitted that such evidence was not being used as a platform to justify the mother’s parenting proposals for either the allocation of sole parental responsibility to her, or the imposition of supervision upon the time spent by the children with the father.
In the face of those submissions and concessions, the issue of family violence shed the importance that it would otherwise carry in parenting proceedings. Nevertheless, the evidence should not be ignored.
The mother made grave allegations about the father’s commission of family violence, both to the single expert and in her evidence. The father denied committing physical violence upon the mother at any time, other than on one occasion in self-defence. He asserted that the mother’s allegations against him were fabrications.[69]
[69] Single expert report, pages 8.1, 8.5, 9.1, 10.5
The mother told the single expert that the father had been abusive to her on a daily basis, and that he committed two assaults upon her, with her being “bashed with saucepans and thrown downstairs.”[70] The father’s conduct caused her to call 000 several times for police assistance.[71] The mother further alleged that the father “hit her over little things”.[72] To the extent that the mother disputes the accuracy of the history recorded by the single expert,[73] I prefer the evidence of the single expert.
[70] Single expert report, page 5.7
[71] Single expert report, page 7.4
[72] Single expert report, page 6.7
[73] Mother’s affidavit, par 92(b)
The mother relied upon several incidents that she clearly considered were the most extreme examples of the father’s violent or threatening conduct towards her. Those events were:
a)An incident when she was pregnant with the eldest child in March 2006.
b)An incident on an unknown date, but during cohabitation.
c)An incident on 14 August 2007, shortly following separation.
d)An incident on 9 May 2009, shortly following the allegation of sexual abuse.
On three of those occasions the mother summoned police assistance. She said in evidence that she did not call the police more regularly because of her fear of the father. I do not accept that evidence, firstly because it is inconsistent with her having called the police when she did feel the need, and secondly, because the mother proved to be an unreliable witness in respect of her allegations.
The mother does not even give any account of the first and second incidents in her affidavit. They were only mentioned by the maternal grandmother in her affidavit.[74]
[74] Maternal grandmother’s affidavit, par 22
The mother’s allegations are not borne out by either the maternal grandmother’s evidence or independent records.
In respect of the first incident, the maternal grandmother saw nothing and relied entirely upon what the mother later told her had occurred. The 000 call made to police by the mother on that occasion was tendered.[75] The mother made the call at 11.45 am on 12 March 2006, and the 000 receptionist recorded her summary of the mother’s complaint as follows:
“Husband…is being abusive. Poss becoming violent…Verbal argument only. No offence detected…Victim stated she over-reacted, wanted to scare husband only. Police satisfied victim under no threat/spoken to at length/no prior history…Inft called back to say that everything is calm now and the police are no longer required (sic)”
[75] Exhibit M1
The mother’s contemporaneous report to police is completely at odds with the version she gave the maternal grandmother of being pushed to the floor by the father.[76] The maternal grandmother described the mother as being distraught at the time. Presumably that was the over-reaction admitted by the mother to police.
[76] Single expert report, page 11.5
In respect of the second incident, the maternal grandmother only overheard a heated argument between the parties while she was on the telephone to the mother. When she later attended the matrimonial home, although the mother was upset, she was uninjured. It was not alleged that the father had assaulted the mother on that occasion. The maternal grandmother also conceded that there was no damage to the door the father was allegedly earlier trying to break down.
There is no document or witness available to corroborate the mother’s allegation that she was beaten with a saucepan on either of those occasions, or on any other occasion for that matter. The mother conceded that the only allegation relating to the use of a saucepan against her was made in her own prior affidavit filed in these proceedings on 20 December 2007. She conceded that the version of the incident she gave in that affidavit was that, during an argument, the father held a saucepan as if to hit her with it but did not do so. Obviously that is a different version from the one she related to the single expert of being “bashed with saucepans”. She could not account for the discrepancy.
Shortly after the birth of the eldest child in June 2006, the mother completed a Domestic Violence Screen for the Hunter New England Area Health Service in July 2006. In that screen the mother stated that she had suffered no domestic violence with her partner or ex-partner within the preceding 12 months and that she was not in fear of her partner or ex-partner.
The mother was confronted with that graphic evidence, which placed her on the horns of a dilemma. Either her evidence was false or her answers to the Area Health Service were false. The mother maintained that her evidence about family violence was accurate and that she made a deliberately false declaration to the Area Health Service. The mother said that she did so because she was scared to admit the violence at that point in time. Even if one accepts the mother’s explanation as convincing, it follows that the mother concedes she is a person who is prepared to misrepresent facts when it suits her.
The third incident is the subject of direct evidence by both the mother[77] and maternal grandmother.[78] The mother conceded that the incident occurred on 14 August 2007, as the father asserted,[79] not 2008 as she stated in her affidavit. It is the incident the mother was referring to when she told the single expert she had been “thrown downstairs.”[80] The parties had separated by then. The mother and eldest child were living with the maternal grandmother and the father remained in the former matrimonial home. The mother went alone that evening to the former matrimonial home. For the mother to even have done so raises doubts about her alleged fear of the father, albeit that the mother said she did not expect the father to be home.
[77] Mother’s affidavit, pars 13-16
[78] Maternal grandmother’s affidavit, par 23
[79] Father’s affidavit, pars 27-29
[80] Single expert report, page 5.7
The version of the incident given by the mother in her affidavit is that she and the father argued when they confronted one another inside the house. She alleges the father held a cricket bat and waved it at her in a threatening manner, and then pushed her down the stairs. Although she lost her balance, she apparently did not lose her footing, but hurt her arm while regaining her balance. The mother then called police from downstairs.
That account is generally consistent with the version the mother gave to the maternal grandmother later that evening. It is also generally consistent with the version she gave to police upon their arrival at the home that evening.[81] The mother told police that an argument escalated to the father grabbing her wrists and then him later having hold of a cricket bat. She did not allege being hit or injured. The police saw no visible injury to either the mother or father.
[81] Exhibit ICL4
The mother attended upon her medical general practitioner the next day. The doctor’s notes from the consultation are in evidence,[82] and state in part as follows:
“Assaulted with cricket bat last night – knocked to the ground, kicked and thrown downstairs…Been assaulted five or six times before, but never with cricket bat. Usually just throws her to the ground and kicks her.”
[82] Exhibit F5
Although waving a bat at a person intending, and causing, that person to be apprehensive of immediate physical violence may amount to an assault without the need for any physical battery, there is no ambiguity about the mother’s allegation of her actual battery. In the doctor’s letter of referral to a physiotherapist,[83] the doctor explains the mother’s alleged soft tissue injury was caused by her being:
“beaten with a cricket bat and thrown downstairs.”
[83] Exhibit F6
The mother asserted in cross examination that she only told the doctor that she had been threatened with a cricket bat and did not say she had been beaten or assaulted with the cricket bat. I do not accept the mother’s evidence. It is highly unlikely that the doctor would have made such a significant error in transcribing the history given by the mother, with the notes being made by the doctor during the consultation.
It is plain that the history given by the mother to the doctor departs substantially from the version she gave to the maternal grandmother, the police, and the Court. There is no evidence of the mother actually being hit with the bat, no evidence of her being knocked to the ground, and no evidence of her being kicked. She clearly grossly exaggerated the incident to her doctor, despite her refusal to accept that proposition in cross examination.
The father’s version of that incident is remarkably different from the mother’s. He denies holding or waving and cricket bat, and denies hitting the mother at all, either with any part of his body or any implement. He asserts that he only grabbed the mother by the wrists to prevent her hitting him, and that the mother lost her balance on the stairs of her own accord as she followed him down the stairs. The version given by the father in evidence[84] was generally consistent with the version he gave to police on the night.[85]
[84] Father’s affidavit, pars 27-29
[85] Exhibit ICL4
The father alleges that, whilst trying to reconcile with the mother in 2008, the mother told him that she fabricated her allegations about the incident on 14 August 2007 in an effort to have him removed from the former matrimonial home.[86] I accept that the mother said words to that effect to the father, but that does not necessarily mean that the mother was speaking truthfully. She may have said that to the husband in an effort to placate him and facilitate the proposed reconciliation. The parties certainly had a physical altercation in August 2007 of which they were capable of having different perceptions, quite apart from the mother’s exaggeration to her doctor, of which the father then knew nothing.
[86] Father’s affidavit, par 60
The last of the episodes of family violence alleged by the mother occurred on 9 May 2009, being one week after the father’s alleged sexual assault of the eldest child. The uncontentious fact is that the mother was then deliberately thwarting any interaction between the child and the father. The child was again due to spend time with the father that day and the father had not been informed of the sexual assault allegation. Consequently, the father had not been given any valid reason why the mother was refusing to allow the eldest child to spend time with him that day. The father went to the mother’s home demanding some form of explanation.
The mother[87] and maternal grandmother[88] give their versions of what then occurred. The father was told that the children could not spend time with him because they were unwell.[89] The maternal grandmother admitted in cross examination that was a lie. The children were well. Any medical certificate held by the mother was a ruse to explain the unavailability of the children to the father.[90] The maternal grandmother is therefore also a person who is prepared to misrepresent facts when she feels the need.
[87] Mother’s affidavit, pars 46-47
[88] Maternal grandmother’s affidavit, par 9
[89] Maternal grandmother’s affidavit, par 9
[90] Mother’s affidavit, par 37, Annexure A
Although it is acknowledged there was no physical violence on that occasion, there was still an unpleasant scene. A member of the maternal family called the police. The police record of the event records that the father was verbally abusing the mother because she refused to allow him to see the children.[91] The father made no threats to the mother. The police held no concerns about the father’s conduct and simply instructed him not to contact the mother, which instruction he accepted. Of course, the father should not have been verbally abusive to the mother either, but such behaviour falls far short of evidence of family violence.
[91] Exhibit F4
It was conceded by the mother in cross examination that she had never been physically injured by the father, other than for her claim of soft tissue injury arising out of the incident on 14 August 2007.
I much prefer the evidence of the father to that of the mother in respect of the evidence concerning past family violence. The mother’s decision to resile from presenting the allegations as an important pillar of her case was a wise one. Nevertheless, as was contended by both the father and Independent Children’s Lawyer, the mother’s credit was impugned by the evidence about family violence.
Section 60CC(3)(k)
There have been family violence orders made against the father in favour of the mother in the past,[92] but I impute that they all arose out of the incident between the parties on 14 August 2007, so that all but the last order were interim orders. The final family violence order was made on 13 March 2008 for a period of 6 months. The mother conceded that the orders were all made without any admission by the father as to the truth of the facts upon which they were sought.[93]
[92] Mother’s affidavit, pars 17, 92(i)
[93] Father’s affidavit, pars 35, 59, 61
There are no current family violence orders in force.
Section 60CC(3)(l)
The orders made by the Court will certainly distress the mother. The orders dispense with supervision of the time spent by the children with the father, and progressively expand the time that the children spend with him. The orders resolve the controversy over the alleged sexual abuse in the father’s favour.
Nevertheless, the mother must have realised that such an outcome was possible, particularly since the evidence of the single expert supported such an outcome. In light of that possibility, the mother submitted that any orders for the children to spend unsupervised time with the father should be graduated consistently with the proposal of the Independent Children’s Lawyer. The orders achieve that outcome. Accordingly, the orders made are least likely to lead to the institution of further proceedings in relation to the child.
Section 60CC(3)(m)
By reference to the final submissions of the parties and Independent Children’s Lawyer, there are no other facts or circumstances that are relevant to the outcome of the proceedings.
Parental responsibility
The presumption of equal shared parental responsibility should apply. There is no finding of family violence or abuse so as to require the presumption not to apply under s 61DA(2) of the Act, nor does the evidence require rebuttal of the presumption under s 61DA(4) of the Act.
The parties unquestionably have a conflicted relationship, but that has really only been the situation since May 2009 when the mother raised the sexual abuse allegation. Before then the parties were able to communicate and regulate arrangements for the children with relative civility. Both parties agreed with that assessment.
The mother now contends that the parties’ relationship is so conflicted that it necessitates her having sole parental responsibility for the children. The father and his partner concede that the relationship between the parties is unco-operative and hostile, however, the father considers that he is capable of resuming courteous communication with the mother.
The evidence leads me to conclude that the mother will have difficulty communicating with the father in a co-operative way, but that such a task is not beyond her. Although she believes in the allegation of sexual abuse against the father, she is an intelligent person and has the capacity to understand the importance to the children of them being protected from conflict and having sensible decisions made about their futures. The mother may desire avoidance of personal contact and conversation with the father, but communication can be competently achieved in written form by letter, email, and text messages.
I am persuaded by the father and Independent Children’s Lawyer to allocate equal shared parental responsibility for the children to the parties.
Living Arrangements
The allocation of equal shared parental responsibility obliges the Court to consider the advisability and practicability of the children living for equal time with each party, or alternatively living predominantly with one and spending substantial and significant time with the other.
Importantly, the parties and the Independent Children’s Lawyer uniformly submit that the children should remain living predominantly with the mother. That is consistent with the recommendation of the single expert, which is that the children remain living with the mother, provided the mother “appropriately supports their time with the father.”[94] The proviso is significant and ought be remembered by the mother. Having regard to the ages of the children and their primary attachment to the mother the only currently logical outcome is for the children to remain living with the mother. The children should not live for equal time in each household.
[94] Single expert report, page 17.1
The real issue in the case is the amount of time that the children should spend with the father, and the circumstances under which that should occur. The evidence justifies the children ultimately spending substantial and significant time with the father, but that outcome will need to be reached through a staged process.
The single expert does not support the continuation of supervision of the time spent by the children with the father. The imposition of supervision was caused only by the unresolved issue of the potential sexual abuse by the father of the eldest child. Now that the conclusion has been reached that the father poses no unacceptable risk of sexual abuse to the children, the need for supervision lapses.
There were some relatively slight variations between the written[95] and oral recommendations of the single expert about the rate of acceleration of the staged process of re-introduction of the children to unsupervised time with the father. The children are both still young. The youngest child’s attachment to the father is significantly less secure than that of the eldest child to the father. That disparity presents some difficulty in managing the graduated restoration of the children’s time with the father. The single expert asserted that it would be advantageous for the children to be treated identically and subjected to the same program of time with the father. That opinion was not challenged and I accept it as correct.
[95] Single expert report, pages 14.3, 17.2
If that is so, then the program of restoration of time spent by the children with the father should follow a trajectory that suits the needs of the youngest rather than the eldest child. The Independent Children’s Lawyer recognised that necessity by proposing a graduated regime of time for both children to spend together with the father. The father proposed a regime that differentiates between the two children and accelerates the regime for each child at a faster rate than the advice of the single expert.
The youngest child is still only 19 months of age. He has only spent short bursts of supervised time with the father since he was born. The single expert advises that he needs to spend frequent but relatively short amounts of time with the father to begin with. Regularity is essential. The single expert offered the suggestion of immediate expansion of the time spent by the children with the father to two half-days per week. The next expansion of time should be delayed until the youngest child attains two years of age in April 2011.
The single expert said that overnight time should not be introduced until the children have become accustomed to the father and his partner cooking for, feeding, and bathing them.
The orders attempt to reflect the advice of the single expert, which I accept, and bear some resemblance to the orders proposed by the Independent Children’s Lawyer.
The orders increase the time spent by the children with the father to an amount of time meeting the description of “substantial and significant time” within about 18 months, when the youngest child will have just attained three years of age, but delays the introduction of the children spending protracted time with the father during school holidays until the youngest child is close to the attainment of five years of age. The eldest child could probably cope with much faster acceleration of the process, but that rate of acceleration will suit the youngest child.
By the time the youngest child is nearly five years of age the parenting regime for the children will be similar to the regime to which the mother agreed in March 2008 in respect of the eldest child when she was to begin school.[96] The orders also mark out a progression which is similar to the parenting regime currently proposed by the father in respect of the youngest child.[97]
[96] Order 3(f) made on 5 March 2008
[97] Amended Application, Order 4
The mother proposed in final submissions that changeovers occur at the McDonald’s restaurant. The father proposed in his Amended Application that the changeovers occur at the mother’s residence. I reject the proposal of the father. For the foreseeable future the parties should only interact with one another in a public place. They are more likely to be civil in such circumstances and the presence of members of the public as potential witnesses will be a deterrent to incivility.
I also reject the proposal of the Independent Children’s Lawyer that changeovers must occasionally occur at a contact centre. That introduces an element of expense which is unnecessary. The public nature of a fast food outlet renders it a sufficiently secure venue, as is recognised by the Independent Children’s Lawyer proposing some changeovers occur at such a place.
The McDonald’s restaurant is reasonably convenient for both parties, given their respective residential addresses in Newcastle.
The orders require the parties to undertake a post-separation parenting course approved by the Independent Children’s Lawyer. That order is also consistent with the advice of the single expert.[98]
[98] Single expert report, page 17.5
The maternal grandmother said that if the eldest child made a further complaint about the father then she would again take the complaint up with the authorities. She should not be discouraged from doing so, provided the authorities are enlightened about the circumstances of the current complaint and the finding that it is without foundation. Consequently, an order is made requiring these orders, reasons and the single expert’s report to be released to the authorities in such an event.
The Independent Children’s Lawyer sought an order compelling the mother’s attendance at psychological counselling.[99] No such order is made. There is no jurisdiction for the Court to make such an order because it is not an injunctive order under ss 68B or 114 of the Act, nor a child welfare order under s 67ZC of the Act (see L v T (1999) FLC 92-875 at 86,388-86,393), and it is difficult to conceive it as a parenting order under s 64B of the Act.
[99] Exhibit ICL8, Order 5
The father sought a further order in the form of an injunction precluding the mother from speaking to the children about the allegations of sexual abuse and to positively act so as to prevent others, such as the maternal grandmother, from so doing. That request arose out of the mother’s evidence about discussions with the child on that topic,[100] and the maternal grandmother’s concession that she continues to tell the eldest child that she will be protected from harm at the hands of the father by the mother and maternal grandmother.[101] Although it is clearly desirable that the mother and maternal grandmother immediately cease discussing the sexual allegation and the eldest child’s safety with her, I desist from making the order proposed by the father. It is almost impossible to conceive a form of order that would be enforceable, and making such an order would only encourage the father to inquire of the child whether the mother was compliant. The father’s failure to provide a draft of such proposed order is testament to the difficulty it poses.
[100] Mother’s affidavit, par 54
[101] Single expert report, page 11.1
The remaining orders are of a kind proposed by the father or Independent Children’s Lawyer, or are of a kind about which there can be no sensible argument.
For those reasons I regard the orders set out at the commencement of these reasons as meeting the best interests of the children.
I certify that the preceding two hundred and three (203) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 7 December 2010.
Associate:
Date: 7 December 2010
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