Concerns of Court about agreement reached at trial
Hong & Fletcher  FamCA 47 (25 January 2016)
Last Updated: 17 February 2016
FAMILY COURT OF AUSTRALIA
FAMILY LAW – CHILDREN – Orders by consent – Order that parents have equal shared parental responsibility for the children – Order that children live with father on a week about basis during school term – Orders providing for school holidays and special events with each parent – Orders for family therapy – Injunctive Orders
Family Law Act 1975 (Cth)
25 January 2016
The following is annotated. For full case: http://www.austlii.edu.au/au/cases/cth/FamCA/2016/47.html
- In this matter, I am going to make some comments which I will have recorded and placed on the file. It is worthwhile, in my view, doing this so that if this matter ever comes back to court, there is some short form whereby the parties and independent children’s lawyers and judicial officers may understand how the settlement occurred. The settlement occurred after the trial commenced on Monday, 18 January 2016 and concluded on 20 January 2016, when the parties indicated that they had reached preliminary agreement. Each of the parties was represented by counsel and solicitors, and the Independent Children’s Lawyer was represented.
- The terms were reflected upon by the parties over clearly a couple of days and they were finally engrossed on the Thursday afternoon or the Friday morning of last week, and the orders were made on the following Monday. The orders relate to B, who is age 9, and C, who is age 7. Their parents were unable to agree on parenting arrangements. They were unable to agree on the questions of residence, communication, time and parental responsibility. The mother had believed the children had been sexually abused by the father and were at an unacceptable risk in his care.
- The father believed the mother and maternal grandmother had raised a false belief or had placed a false belief in the minds of the at least one or perhaps both of the children that they had been sexually abused. He asserts it was done to impeach the relationship between the children and the father. The father further asserts that the mother may suffer from Munchausen’s by proxy, although the evidence of Dr E, albeit that her cross-examination had not been completed, was that she formed no such view, and there was no admissible evidence before me of any examination of the mother or the maternal grandmother to that effect.
- The parties clearly do not like nor trust each other, and their communication is poor. The allegation arose in about August 2012 shortly after consent orders had been made in May of that year.
- The mother was born in 1971 and is aged about 45 years. She is a graphic designed and a photographer by occupation. Apart from allegations by the father as to the mother’s mental health, there seem to be no other relevant aspects as to that. The father is aged 43 and is a semi-retired management consultant, on the material that I saw, and no significant issues were raised as to his physical health.
- The parties apparently commenced cohabitation in October 2005. B was born in 2007 and C 2008. The parties separated in late 2008 according to the mother, and later according to the father. In July 2010, the parties commenced proceedings in the then Federal Magistrates Court and family reports were prepared by family consultant Ms F in July 2011 and May 2012. I had the opportunity of reading their reports, although that Family Consultant was not cross-examined and I do not think it was intended that she was.
- As I said, those proceedings were resolved by consent orders made in May of 2012. I heard evidence from Dr E, a child and family psychiatrist, who was cross-examined by the Independent Children’s Lawyer, counsel for the mother and in part counsel for the father. It was clear that that cross-examination was not completed, and any comments I make are on the basis that it was open for those to be changed, even before the completion of the cross-examination. During the time she was cross-examined on day 1, there were no issues taken as to her qualifications.
- The mother gave evidence in terms of her affidavit sworn 14 January 2016 and 19 June 2015. Those affidavits were read into evidence with some minor amendments. In addition, there were other material read into evidence, including proofs of evidence in respect of the father’s affidavit filed, 16 January 2016 and his affidavit filed 2 December 2014, there being an issue as to whether that had been served or brought to the mother’s attention. I was unable to make a finding given the settlement in that respect.
- After the allegations were made, there were four sets of interviews with the children. The first was with B on 7 September 2012, the second in 2013, which was not readable, and the third and fourth in October 2014. I observed the first and third DVD of the interview and also the fourth one for C there seemed to have been no issue that the mother has been the primary carer of the children or that she was significantly helped by the maternal grandmother. I did not see or hear any evidence in person from the maternal grandmother, and the comments I make are also in the absence of any other witnesses, including the testing of the father’s evidence by cross-examination.
- I was concerned about the level of animosity between the parties, particularly as raised by Dr E in her report, and in terms of the way the litigation was conducted. It ought not to have been conducted as if it were a criminal trial and ought not to have been a chance to humiliate a witness. It is not a memory test. Parties are entitled to file affidavits and rely on affidavits. I was concerned when I read the terms in relation to equal-shared parental responsibility given that animosity and particularly given the approach adopted by the father during the trial.
- However, given the age of the children and the consent of the parties, it seems to me that I ought not to interfere in that as it was the expression of the parties’ reflection into the future rather than a reflection of the past. Similarly, I make those comments in relation to equal time. I also make this clear to all parties: if I had believed that the children were at an unacceptable risk of sexual abuse into the future, I would not have made these orders. That is not to be taken that I accept that it did or did not occur. It just seemed to me on the evidence, as I saw it at the time of settlement, that that would have been hard to come to the conclusion of unacceptable risk. This ought not to be taken as being a criticism of the mother or the father but simply as where the evidence fell. Given those circumstances, I have made the orders.