Jakeman & Rowe  FamCA 838 (8 October 2015)
Last Updated: 20 October 2015
FAMILY COURT OF AUSTRALIA
27-28 November 2013; 20-22 January 2014, 28 January 2014, 3 February 2014, 8 May 2015, 12 May 2015
(1) The father will have sole parental responsibility for B (born … 2008) and C (born … 2009) (“the children”).
(2) Notwithstanding Order 1 the father will have responsibilities to notify, inform, authorise and consult with the mother as follows:
<li “=””>(a) The father will notify the mother about any major matters relating to the children including but not limited to significant medical treatment or requirements, education and extracurricular activities. He will notify her by email, unless the parties otherwise agree.<li “=””>(b) The father will inform the mother as soon as is practicable after any major event relating to the children and in particular will report to her what occurred and how it affected the children.<li “=””>(c) The father will authorise any medical or similar practitioner upon whom the children attend (including any counsellor or therapist) to provide to the mother at the mother’s cost, and at her request, any information relating to any treatment administered to or required by either of the children. <li “=””>(d) The father will consult with the mother about which school each of the children will attend. In particular, the father will consider the points raised by the mother about which school would be best for the children. But ultimately the father will make the decision about which school the children will attend. The father will not change the school(s) the children attend without giving the mother reasonable notice of the proposed change.<li “=””>(e) In relation to a dispute between the parents as to the matters referred to above, the father will have a duty to consult with the mother. If the parties are unable to reach agreement, subject to any Court Order to the contrary, the father’s decision will prevail.<li “=””>(f) Neither parent will enrol either of the children in any extracurricular activity without the consent of the other parent unless such extracurricular activity occurs completely within the time that the children are spending with that parent.
Arrangements about with whom the children will live and the physical time that they will spend with the other parent.
(3) From noon on Saturday 10 October 2015, the children will live with their father and spend time with their mother as follows:
<li “=””>(a) For a period of one month after the date of these orders, the children will live with their father and spend no physical time with their mother.<li “=””>(b) Thereafter, the children will spend from Friday after school on every second weekend with their mother starting on the first Friday after the completion of the one-month period referred to in the preceding order, until the commencement of school on the following Monday, unless that Monday is part of a long weekend, in which case the children will spend until Tuesday morning when they are to be returned to school with their mother.<li “=””>(c) For periods when the children would otherwise be on school holidays, at the end of term three this year and during the long vacation at the end of this year, the children will continue to spend time with their mother on each second weekend but the time with their mother will commence at 3 PM on the Friday and end at 9 AM on the Monday. The changeover point will in each case be at the mother’s home, unless the parents otherwise agree.<li “=””>(d) The provisions set out in order in Order 3(b) above, will from the first week after the end of the term three holidays in the year 2016 vary so that the children spend from after school on
until the mother returns the children to school on the following Monday. (This is to provide to the mother some time with the children during their school activities.)<li “=””>(e) Commencing with the holidays at the end of term one in 2016 the children will spend one half of each school holidays with their mother, with that being the first half of the school holidays in years ending in an even number or zero, and the second half of the school holidays in years ending in an odd number. (For these purposes the time that the children spend with their mother in the first half of the school holidays will commence after school on the last day on which either of the children is obliged to attend school and will end at noon on the first Saturday of the school holidays for the three shorter school holidays and at noon on the midpoint of the longer school holidays. Where the children are to spend the second half of the school holidays with their mother, that period will commence at noon on the midpoint of the school holidays and end at noon on the last day of the school holidays before the children are obliged to attend school for the new term.)<li “=””>(f) If Father’s Day should fall on a day when the children are otherwise, by these orders, required to be with their mother, then the weekend time the children would otherwise be spending with their mother will take place with their father, and the weekend time between the children and their mother will take place on the weekend immediately following the weekend on which Fathers’ Day falls. (It is noted that this will mean that the children will spend two consecutive weeks with one parent. The pattern of alternating weekends will resume immediately after the second weekend.)<li “=””>(g) If Mother’s Day should fall on a day when the children would otherwise be with their father, then the weekend time the children would otherwise be spending with their father will take place with their mother and the next weekend and the weekend thereafter will be spent by the children with their father.<li “=””>(h) Christmas Day will be spent in accordance with the above-mentioned Orders after 2015 with the parent whose half of the school holidays it is in accordance with the Orders. (That is, in 2016 the children will spend the first half of the long vacation at the end of the year with their mother and accordingly will spend Christmas Day with her.)<li “=””>(i) If Easter Sunday falls outside the school holiday period then the children will spend each alternate Easter Sunday with one parent. The children will spend Easter Sunday with their mother in 2016 and their father in 2017.<li “=””>(j) Nothing in these Orders prevents the parents agreeing to some alternative arrangement. In particular, but without limiting the generality of the foregoing comment, the parents may agree if they wish to do so, to share the time the children have with each of them on Christmas Day and Easter Sunday.<li “=””>(k) If the children’s birthdays fall other than on a weekend where they would ordinarily be with their mother then the children will spend two hours (4 PM to 6 PM) with their mother – unless the parents otherwise agree.<li “=””>(l) The parents may consult and agree about the time (or some time) that the children might spend with each of them on each of the parents’ respective birthdays. However, if the parents are unable to agree about such an arrangement, no time will be spent by the children with the parent on his or her birthday if the children are not with that parent on that day.
(4) Neither parent will prevent or allow anyone else to prevent the children from calling the parent with whom they are not currently spending time.
(5) The children may contact (including telephone, Skype or FaceTime) either parent at any time and each parent will facilitate such communication.
(6) The mother may call the children on Tuesday nights and Thursday nights at 6:30 PM for a period not exceeding 15 minutes when the children are with the father.
(7) The father may telephone the children during school holiday periods when they are with their mother at 6:30 PM for a period not exceeding 15 minutes on each Tuesday and Thursday evening.
(8) Neither parent will solicit, or permit any other person to solicit, telephone calls to a parent or to that person from either of the children.
(9) Nothing prevents the parents varying the communication arrangements as set out above by consent.
(10) The mother be and is hereby restrained from attending at any school the children are attending except by prior arrangement with the father whose consent will not be unreasonably withheld.
(11) Notwithstanding Order 10, the restraint order does not exclude the mother from attending ordinarily scheduled parent / teacher interviews at school or functions at school to which the parent body is invited.
(12) Only the parent with whom the children are currently staying will accompany the children to extracurricular activities, unless the parents otherwise agree.
(13) The children are free to communicate with the other parent by email but may not use other social media unless the father agrees that they may do so.
(14) Each of the parties be and is hereby restrained from discussing these proceedings (or the judgment in this matter) with either or both of the children.
(15) Each of the parents be and is hereby restrained from showing or causing anyone else to show to the children any document or documents from these proceedings.
(16) Each of the parents be and is hereby restrained from saying unkind or unpleasant things about the other parent, his or her family, associates or partner, or from permitting any other person to do so in the presence or hearing of the children.
(17) The mother is hereby restrained from taking either child for medical or psychological or psychiatric treatment or assessment or for further counselling or therapy except that which is agreed by the parties prior to the commencement or commitment to such treatment.
(18) Each of the parents and their servants and agents be and is/are restrained from removing or attempting to remove or causing or permitting the removal of either of the children from the Commonwealth of Australia.
(19) It is requested that the Australian Federal Police give effect to the preceding order by placing the names of the said children on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child or children’s names on the Watch List for a period of 3 years.
(20) Upon expiration of the period referred to in Order 20 and subject to any further order of a court of competent jurisdiction, the Australian Federal Police will cause the removal of the child or children’s names from the Watch List.
(21) Pursuant to s 62B and s 65DA(2), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders, and details of who can assist parties to adjust to and comply with an order, are set out in the document entitled Parenting orders – obligations, consequences and who can help, a copy of which is annexed to these orders.
(22) All material produced subpoena which did not become the subject of exhibits will be returned by the Court to the persons producing it as soon as practicable.
(23) Any material produced subpoena which became an exhibit will be returned by the Court at the expiration of the appeal period to the person producing it. Any material produced by a party which became the subject of an exhibit will be returned by the Court to the party at the expiration of the appeal period.
(24) This matter is removed from the pending cases list.
FAMILY COURT OF AUSTRALIA AT CANBERRA
REASONS FOR JUDGMENT
- This is a dispute about with whom the children, B (born in 2008) and C (born in 2009) will live. The parents lived together from mid December 2007 until early August 2009. At the time of separation B was 10 months old and C was not yet born. The mother had another daughter D (born in 2000) from a previous relationship. Some time after proceedings were initiated, there was an alleged disclosure by the oldest child of sexual abuse by the father. The dispute has since centred on how much time, if any, the children should spend with their father.
- This matter has a long procedural history. On12 April 2010 the father filed an initiating application in the E Town Local Court in New South Wales for interim and final parenting orders. The father sought that the children live with the mother and spend time with him 7 non-consecutive nights per fortnight. Interim orders to this effect were made on 20 April 2010. The mother did not attend the hearing on this date.
- On 30 April 2010 the father filed an Application for Contravention asserting that the mother had failed to make the children available as per the interim orders. This application was listed for 4 May 2010. The mother attended court on this date, representing herself. She admitted the contraventions but asserted that she believed the children to be at risk in the father’s care. The Magistrate ordered that the interim orders remain in place and listed the matter again on 8 June 2010 to enable the mother time to seek legal advice. On 17 May 2010 the father filed an Application in a Case alleging further contraventions and raising concerns for the children’s welfare while in their mother’s care, and seeking a recovery order. The matter was heard ex-parte on 18 May and a recovery order was made. The mother brought the children to the E Town Local Court on that date and the children thereafter remained largely in the father’s sole care until 20 July 2010.
- On 3 June 2010 the father amended his Initiating Application, seeking that the children live with him and spend time with their mother 4 nights per fortnight. On 20 July 2010 interim orders were made by consent putting in place a week-about arrangement for the children, and the matter was transferred to the Federal Magistrate’s Court (as it then was) in Canberra.
- On 16 August 2010 the matter came before Federal Magistrate Brewster (as he then was). At this time the mother sought to have the consent orders varied so that she could care for the children during the day while the father was at work during his periods with the children. The father had a family day care arrangement in place with a retired nurse during the times he was at work and opposed the mother’s application. Federal Magistrate Brewster (as he then was) refused the mother’s application to vary the interim orders and ordered a family report be prepared in the matter.
- In December 2010 the Family Consultant, Ms F recommended that:
Until [B] and [C] are of an age when they can emotionally tolerate lengthy absences from their primary attachment relationship, their mother, they should live substantially with her and spend frequent times with their father.
- On 9 February 2011 Federal Magistrate Brewster (as he then was) set the matter down for final hearing on 18 and 19 April 2011. This was later re-listed to 26 and 27 May 2011 before Federal Magistrate Mead (as she then was).
- On 26 May 2011 the parties entered into consent orders. These orders provided for equal shared parental responsibility between the parties, that the children live with the mother and spend time with the father every second weekend, and one day and one night during the alternate week. The orders made provisions for the time the father spent with the children to increase as the children got older.
- On 14 June 2012 the father filed an Initiating Application in the E Town Local Court, seeking that the mother return from G Town, where she had relocated to with the children, to E Town. On 29 June 2010 he filed an Application for Contravention. On 7 August 2012 the matter was transferred back to the Federal Magistrate’s Court (as it then was) in Canberra.
- The parties attended a Family Dispute Resolution Conference on 12 December 2012 and filed consent orders as a result. These orders provided that the children would live with the mother and spend time with the father from Thursday night to Monday morning every second week. The orders expected that the mother would remain in G Town.
- On 15 January 2013 the mother reported to police that B had made disclosures to her that led her to believe that B had been sexually abused by her father. The police applied for, and were granted, a Provisional Apprehended Domestic Violence Order ex parte by the H Town Local Court. The mother did not make the children available for time with their father. The mother subsequently placed posters around the E Town CBD stating the father’s name, address and workplace, and claiming that the father “is a paedophile.” As a result of this, the police took out an Apprehended Domestic Violence Order against the mother on the father’s behalf.
- On 8 February 2013 the father obtained a Recovery Order in the E Town Local Court ex parte, and on 9 February police officers attended the mother’s home and removed the children from her care. On 15 March 2013 the mother filed a Notice of Appeal against the Recovery Orders and the matter was listed before me in the Family Court in Canberra on 21 March.
- The mother was given leave to appeal and the consent orders of 12 December 2012 were reinstated. Orders were made for the parties to participate in the Child Responsive Program and that a single expert to be appointed.
- As a result of these Orders a report was prepared by Family Consultant, Ms I. Ms I commented that:
At this stage it seems unlikely the parents can cease their hostilities and maintain a sufficiently stable environment to support a shared care arrangement. If so, it is in the best interest of the children that they live with the parent with whom they have a primary attachment and spend regular time with the other parent.
The children’s comments suggest they are unhappy with the current arrangements and their behaviours as reported by the mother indicate they are experiencing significant stress.
[B’s] comments about her father suggest she is feeling angry towards him, and is unhappy regarding the current arrangements.
- Dr J was appointed as the single expert in these proceedings.
- The matter was subsequently set down for the first day of a Less Adversarial Trial (LAT) on 20 June 2013. The single expert report was not available by this date. The parties were given leave to file further affidavit evidence and the matter was adjourned until such time as the single expert report was available.
- The matter was subsequently set down for defended hearing on 27 and 28 November 2013 and additionally proceeded further on 20, 21, 22 and 28 January and submissions were made on 3 February 2014.
- In summary the Applicant mother in the first instance sought that:
- The mother have sole parental responsibility;
- The children live with her;
- The children spend no time with the father, or, in the alternative, that the children spend professionally supervised time with the father at such frequency as determined appropriate by the court.
- The parents not live a distance greater than 150km from each other unless mutually agreed between the parties.
- On the third day of the hearing Counsel for the mother told the Court that the orders which the mother was seeking had varied slightly and the mother now sought that the father spend time with the children every second weekend from Friday afternoon until Monday morning, providing that the Court found that this did not pose an unacceptable risk to the girls.
- The father was seeking the orders as set out in the ‘Minutes of Final Orders Sought’. In summary the father sought that:
- The parents have equal shared parental responsibility;
- The children be enrolled at E Town Public School;
- Each parent be at liberty to speak with the children via telephone or other electronic communication when not spending time with that parent, providing such communication takes place prior to 6:00pm;
- Each party be restrained from changing the residence of the children from E Town, NSW or within a 50km radius of that town.
- The father also sought three various set of orders depending on where the mother lived. Firstly if the mother resided in E Town that the children live with the father and spend time with the mother every second weekend from Thursday to Monday, and on Thursday and Fridays in the alternate week. In the alternate he sought that the children live with the mother and the children spend time with him every second weekend from Thursday to Monday, and from Wednesday to Friday in the alternate week. If the mother resided in G Town that the children live with the father and spend time with the mother every second weekend from Friday to Monday with changeovers to occur at E Town Public School, or KFC K Town during the school holidays.
- In all scenarios the children spend half of the school holidays with each parent.
- In cross-examination the father told the Court that he would be happy for there to be a ‘fifty-fifty split’, and accepted that this would be in his daughters’ best interests.
- Judgment was reserved.
- On 21 April 2015 the father filed an Application in a Case seeking a recovery order. In response the mother admitted she was in breach of the existing orders but alleged that the children had made further allegations of sexual abuse against the father. Orders were made in chambers on 22 April 2015 to obtain updated material pursuant to s 69ZW and the matter was listed hearing in relation to the new matters on 8 May 2015, with final submissions being made on 12 May 2015.
- Judgment was again reserved.
WHAT A TRIAL IN THE FAMILY COURT CAN AND CANNOT DO
- It should be said at the outset of the consideration of the matters for determination by the Court that this is not a case which is solely about the determination of whether or not Mr Rowe had sexually assaulted either or both of the girls. The case before the Court is what orders should be about where the children will live, who should have responsibility for issues relating to their parenting and the time that they would spend with each of their parents.
- Orders are to be considered by reference to the paramount consideration of the girls’ best interests. Naturally enough, at the forefront of considerations on behalf of the parties is a determination (if it is possible so to determine) of the issue about whether or not the children’s father had been involved in some way in assaulting them or behaving in an inappropriate way in relation to them. However, the determination of that issue does not necessarily dispose of the other matters before the Court which will also bear upon what orders should be made in the best interests of the children.
- In matters such as this, it is important to note that the Court must make its decision based on the evidence before the Court. That evidence will typically include reports about what the child or children said occurred, what the alleged abuser says about what happened, the opinions of (in this case) an expert about matters bearing on the determination of the issue and more particularly about what might be in the children’s best interests and a proper consideration of what each of the parties says otherwise and the credibility of the parties in relation to their evidence.
- In criminal proceedings a court must determine issues involving the allegation of a crime according to a standard of proof known as “beyond reasonable doubt”. In civil issues the standard of proof is “on the balance of probabilities”. This does not however mean a mere mechanical comparison of possibilities and does require that the Court (or the fact determiner) must be persuaded that what is asserted has occurred. In other words, it is not a case simply of putting all the possibilities into two piles and then determining which of these should prevail independently of the Court being satisfied that the asserted fact or facts have occurred.
- The more serious the nature of the allegation, particularly if it might involve criminal conduct if proved, the more carefully the Court must weigh the evidence to determine whether the requisite level of satisfaction that something has occurred has been proved and is accepted. In contrast, in criminal cases it is the duty of the prosecutor to demonstrate that all hypotheses consistent with the accused’s innocence other than fanciful possibilities have been eliminated.
- The situation is in part complicated by the fact that those interviewing a child after an allegation of physical or sexual abuse may have different requirements and standards. For example, a police interviewer of a child will be concerned to ensure that the evidence is such that it is probable that a jury will find beyond reasonable doubt that the accused had committed the acts of which he or she was accused.
- In a joint interview with the Department of Family Services case workers, the case worker may be concerned to establish that whatever may have happened the child is now in a situation where he or she will be kept safe. For example, even if the case worker was satisfied (to whatever standard) that some act of abuse had occurred, it would not necessarily follow that the Department would seek to intervene if the child were otherwise being kept safe for example by the mother (or the father in an appropriate case) refusing to allow the child to have any contact or communication with the other parent. Such a decision would not of course determine the issue of whether or not the alleged abuse had occurred.
- In contrast, the Family Court is concerned to establish what orders would be in the best interests of the child and the factors set out under s 60CC of the Family Law Act 1975 (nominating the considerations to be taken into account in determining what is in the best interests of the child) may not coincide with the criteria required under State or Territory Acts for determining whether a child’s safety had been preserved or could be preserved.
The nature of evidence in cases where Child Abuse is alleged
- In some cases before the Family Court even though both parents may have acted based on their belief that something has happened or the conviction that nothing has happened, this may not be determinant of what orders might be in the children’s best interests.
- Moreover, typically, there are only two witnesses to any alleged act of abuse. These are usually the alleged perpetrator of the abuse and the child. In many cases, such as in this one before me, the alleged perpetrator denies on his or her oath or affirmation that the event itself occurred. Sometimes the alleged perpetrator may give evidence (either orally or in writing) that there were events which may have been misconstrued by the child but which did not constitute abuse.
- On the other hand, a child frequently reports an incident (or incidents) to either a parent, a school teacher, a friend or perhaps a counsellor and the progress of the recording of and presentation of those reports to the Family Court in due course is a process fraught with difficulties and ambiguities.
- Most parents are not trained either in law or in the finer points of interviewing children at least for forensic purposes. Accordingly, it is not uncommon, in cases involving allegations of child abuse for the parent or person to whom the child is reporting to respond to the report from the child with questions which may be leading questions as that term is understand in the law. That means that the question may either suggest or give the answer to the child in the question itself. The child may then repeat some of the words in the leading question and subsequent recitations of the events may be more in the nature of a recitation of the amended recollection rather than an observation on what occurred. Obviously again, the age and maturity of the child making the report will have a bearing upon this process and upon the evidence before the Court about what the child said generally.
- If that were not enough, subsequent interviews may or may not further taint the evidence and the recollection of the person to whom the report is made about what was said may be faulty, not the least owing to the emotional responses normally evoked in an adult when a child reveals that he or she has been the subject of some assault. It is therefore important in all cases to look to forms of external corroboration of what one party says or the other. For example, if a person is able to demonstrate that he or she could not possibly have been at the place when the alleged assault occurred this would add weight to the alleged perpetrator’s denial that anything occurred.
- Equally, if there is some physical evidence of an assault then medical evidence about that might be of assistance in corroborating that an assault did occur.
- The role of an expert in these cases is not to be the determiner of whether or not an event occurred but rather to supply assistance of an expert nature to the fact determiner – usually the Court. A suitably qualified expert may, for example, give evidence about whether or not the language used by the child was age or child appropriate. The expert may also give evidence about the nature of the interaction between the child and the alleged perpetrator. Such a process of confrontation may, however, in some cases be totally inappropriate. The expert may give evidence about whether the sorts of complaints made by the child are consistent with the child’s experiences and may investigate alternative possibilities. If for example, a child has been exposed to pornography or has watched adults engaging in sexual activity, evidence about this may provide some explanation for the child apparently having knowledge that he or she would not otherwise have had at his or her age.
- All in all, determinations about whether or not child abuse has occurred are frequently very difficult and in some cases it is not possible or open to the judge to make a decision that something has or has not occurred.
- Whether or not a judge is able to make a determination about whether alleged sexual abuse has occurred, the judge is nevertheless obliged to make such orders as in the circumstances would satisfy the best interests of the children.
- Section 61DA requires the Court when making a parenting order to apply a presumption that it is in the best interests of the children for the children’s parents to have equal shared responsibility for them. The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or children or family violence. It is also the case (s 61DA(4)) that the presumption may be rebutted by evidence which satisfies the Court that it would not be in the best interests of the children for the parents to have equal shared responsibility for them.
- In these proceedings the mother sought sole parental responsibility for the children and the father, equal shared responsibility for the children.
- In this matter for reasons which will appear subsequently, in my opinion it is unrealistic for the parents to share equal responsibility for the children. They have been in dispute for a very long time and the mother has an unshakable belief in the fact that the father has sexually abused the children. While for reasons which will appear hereafter, I do not accept that there are reasonable grounds to believe that the father has engaged in sexual abuse of the children, there appears to be agreement (not the least from the mother) that nothing will shake her conviction about this matter. In my opinion, it is difficult to imagine that the parents could cooperate as they should about the major issues relating to the children’s future and welfare. Accordingly, I cannot imagine in the circumstances of this matter that for the parents to have equal shared parental responsibility could possibly work for the children’s best interests.
- It is obvious that the children have already witnessed conflict between their parents and to have this occur on a regular basis or even from time to time over issues relating to them cannot operate for their benefit. In my opinion, the person with whom the children are primarily living should have sole parental responsibility for them but should have an obligation to keep the other parent advised of major matters relating to the children’s education, health and wellbeing, should endeavour to consult with the other parent wherever possible but in the end should have what amounts to a casting vote in relation to matters relating to the children’s long term welfare.
- If I had come to the conclusion that the parents should have equal shared parental responsibility I would have an obligation under s 65DAA to consider whether the children should spend equal time with each of the parents or if that were not reasonably practicable or not in their best interests, whether they should spend significant substantial time with each parent unless that were also impracticable or not in their best interests.
- The premise for such consideration is not made out as I have determined that one parent should have sole parental responsibility however, taking account of the history of this matter and in particular the recommendations of the Single Expert even if it were physically practicable for the children to spend equal time with their parents or substantial and significant time with one parent and the balance of the time with the other, it would not be in their best interests for them to do so. The conflict between the parties, and in particular the implacable nature of the mother’s belief in the fact that the father has in the past sexually abused the children, would ensure that the children would be subjected to an unacceptable level of tension if they were obliged to move from one parent to the other a frequently, if such arrangements as suggested above, were to be carried out.
- Notwithstanding these matters, it is important that the parents, in so far as they are able to do so, try to exercise responsibility for the children in a cooperative or consultative way. In particular, the father (whom I believe should have sole parental responsibility for the children for the reasons that I will outline in due course) must be obliged to inform, to report and to authorise certain matters.
- In particular, the father must, notwithstanding that he may have the final say about some aspect relating to the major issues for the children, inform the mother of any serious medical condition or any change in the treatment of either of the children in relation to any condition from which they suffer or advise her of any major event affecting the children and in each case such notification and information should be supplied as soon as is practicable. I will make Orders that will so provide.
- The father will also notify the mother about any major matters relating to the children prior to such matters occurring to the extent that it is possible to do so and will provide such information in a timely and proper manner. In addition, the father will authorise any medical or similar practitioner upon whom the children attend to provide to the mother at her cost and, at her request, any information relating to any treatment administered to, or required by, either of the children.
- In determining what would be in the best interests of the children I am obliged under the Family Law Act 1975 to consider both primary and additional considerations as outlined by s 60CC.
- The primary considerations are the benefit to the children in having a meaningful relationship with both of the children’s parents and the need to protect the children from physical or psychological harm or from being subjected to or exposed to abuse, neglect or family violence.
- Of these two primary considerations s 60CC(2A) provides that the Court is to give greater weight to the considerations set out in paragraph (2)(b) – that is, the need to protect the children.
- There then follow thirteen specified considerations to be taken into account followed by a general provision “any other factor or circumstances that the Court thinks is relevant”.
- Before turning to a detailed consideration of matters relating to the protection of the children I comment that both parents had indicated in their evidence in affidavits as reported in their comments to the Single Expert, Dr J, and to the best of my recollection in oral evidence before the Court, that they believe that the children should have a meaningful relationship with both parents and moreover that the children loved both parents and that both parents loved the children. Although the Act prescribes that the Court should give consideration to the benefit to the children in a meaningful relationship it seems there is no argument between the parents (perhaps exceptionally) about this important matter.
THE CHILD ABUSE ALLEGATIONS
- However, turning to the primary consideration to be given greater weight, it is obvious that the major factor for determination relates to whether or not the father had in the past molested the children.
- All of the allegations relate to the period prior to January 2013. The most recent allegations were not about events that had occurred since the matter was first finalised before me but rather a re-agitation of issues previously raised. Although these “new” issues gave rise to reports to both the Police and to the Department of Family Services, it was clear from the mother’s oral evidence in Court that she was distressed to the point of anger and tears that the reports were not actioned in some way either by the Police or by JIRT or by the Department. None of those involved in the investigations previously or those who had succeeded them in these positions were persuaded that the “new” allegations or disclosures warranted further investigations or action. It appears from the information supplied by the mother, which is substantially corroborated from the material provided by the Department (as a result of a further order pursuant to s 69ZW of the Act) that while the officers who initially took calls from the mother expressed sympathy and possibly promised protective action at least in general terms, once the history of the matter had been investigated, and the nature of the allegations examined in more detail, no person who might have conducted further investigations believed that such investigations were justified. Bearing in mind the matters I have set out above about the objectives of each of the agencies involved, it seems to me that such a decision in respect of each of them was justified.
- It is important that I should record that it would be impossible not to be satisfied in my opinion, that the mother genuinely, deeply and sincerely wants to protect the children from what she perceives (in my opinion erroneously) as a risk that their father will in the future sexually assault them or expose them to inappropriate sexual activity.
- It is sad however that in pursuing these entirely legitimate concerns (if the facts of the matter supported her beliefs) the mother appears to have come to a position where she will not accept under any circumstances a view contrary to that held by her that the father was responsible for abusing the children. I formed the impression that the mother was from time to time in her oral evidence, inconsistent, illogical and so distraught on occasions as to be irrational. Her evidence was unreliable.
- This belief or attitude of the mother is examined in great detail in the report provided by Dr J. In particular the following pages of the report are relevant, pages 39, 43, 53, 54, 56, 57 and 62. In addition in the transcript of 28 January 2014 Dr J expressed a number of different views in particular at pages 105, 120, 124, 125, 129, 133, 136, 141, 143 and 146. I accept the expert evidence of Dr J about these matters and in particular I accept Dr J’s opinion that for the children to be continually exposed to the mother’s attitude about these things and the steps that she took in consequence (to which I will refer later) would not be in their best interests and would not operate to advance their welfare.
- That is not to say I hasten to add, that the children should not have a proper relationship with their mother. As I recorded above, both parties believe that it is important (indeed very important) for the children to have a proper relationship with the other parent.
- That having been said, I turn to the nature of the allegations made and to whether I am able to make a determination about whether on the balance of probabilities, in accordance with the standards and restrictions that I have mentioned above, a determination can be made as to whether or not the alleged events did occur.
- Quite substantial material has been provided by the Department as a result of at least two s 69ZW Orders made by this Court. However the material itself is somewhat confusing and repetitive and unlike some other material that has been produced to me in other matters, there is little in the way of a precise record of the interviews with the children – as such – as opposed to a report or summary of what the children are asserted to have said. It is also clear from the material produced by the Department that the children were in some cases reluctant to say anything or denied that anything had occurred. This behaviour with the Department may of course be explicable for any number of reasons including, but not limited to, the artificial and somewhat strange environment in which the children found themselves. However, this conduct is not consistent with, or persuasive that something has occurred even if it is not demonstrative of the fact that nothing has occurred.
- This is probably not very surprising given the age of the children and the less than conducive circumstances in which they were being able to make their reports. This is not intended in any way as a criticism of those officers and case workers who were engaged in interviewing the children but rather is a commentary on the potentially alienating environment in which the children were being asked questions that may have been difficult for them to answer.
- The first comment that might be made about the allegations is that substantial parts of the conduct are in themselves not readily believable. These include the underpants dance and the sausage song. Other reported activities may have been sinister; for example, the placing of a finger into the children’s bottom (for which it would seem should be read “anus”) and then the licking of the fingers afterwards.
- It is to be noted that the father denies unequivocally that any of this activity occurred.
- In some situations it is suggested that possibly innocent conduct might be misinterpreted by children and misreported and alternatively misrepresented by the chain of communication to the final reporter to the Court – sincerely, but erroneously. The father in this matter made no attempt to suggest that for example the placing of a finger in the anus may have been for the application of cream or for the insertion of a suppository.
- The father’s evidence in this matter was given in a straight-forward and believable manner and without hesitation or prevarication. That in itself is a significant factor.
- In addition, (given that I do not purport to be able to read people’s thoughts or hearts) the evidence of Dr J and in particular the tests she carried out and her conclusions about no likely propensity on the part of the father to carry out all or any of the activities suggested, provides a strong preponderance of probability that the actions purportedly complained of by the children did not occur.
- Dr J said
I am not aware of any psychological or behavioural indicators in [B] or [C] that is reliably supportive of concerns that either of them was abused in any way. The behaviour that was reported by [Ms Jakeman] is within what I would expect as normal developmental behaviour in children of [B] and [C’s] age. However, I caution that the absence of behavioural or psychological indicators of abuse does not prove that abuse did not occur, as behavioural indicators are not observed in all cases.
- This observation was teased out a little at page 107 of the transcript of the cross examination of Dr J on 28 January 2014.
- Again, Dr J commented after reporting about the incongruence between the observed behaviour and the relationship of B with her father with what B was reporting as follows
And you would agree that it is very hard for a child to pretend or fake that kind of engagement with a parent that you observed?
Yes particularly at that age.
- The testing of the father gave rise to no suggestion that there was any psychological disposition towards abuse of the children.
- In other words I could not on the basis of the evidence that I have outlined above, and notwithstanding the sincere and almost fanatical belief of the mother, conclude on the balance of probabilities – to the requisite standard of proof – that the events referred to had occurred. I feel no persuasion that the events as asserted did occur.
- I note that counsel for the mother agreed that
I would have to concede on the evidence available to date your Honour could not be satisfied in the Brigginshaw test that the children have been sexually abused.
- Although the mother, when the matter resumed, disclaimed that submission as a concession and suggested in any event that if it were it was not made with her agreement or consent, there is little doubt in my mind that it was properly accepted by counsel for the mother at the relevant time that the evidence did not go so far as to enable a finding that there was an unacceptable risk to the children that they had been sexually abused or that there was any reasonable basis for saying there was an unacceptable risk that it would occur in the future.
- The extensive evidence in this matter examined the various disclosures made by the children and the unfortunate (perhaps not deliberate) actions of the mother have either contaminated the evidence of the children or possibly produced it.
- This was not assisted either by the leading questions that were asked by the JIRT team.
- The witness that B was encouraged to tell about what had happened did not come up to proof.
- In addition, there was a serious intervention by the mother and her partner with the children (again I think potentially unconsciously) which led the children to believe that the Court process was to determine whether mummy or daddy was lying and at least subconsciously enlisted the children’s support in favour of their mother.
- In summary, the evidence that something did occur although sufficient, obviously, to satisfy the children’s mother was both in content and substance and in the circumstances in which it was given, unsatisfactory and unpersuasive. I could not make a positive finding that something occurred and all of the corroborative evidence about the situation could not lead me to the degree of persuasion that is necessary in accordance with the authorities.
- The reports of the children are necessarily bizarre. I have made comment about that in the past and while that would not invalidate the complaints or make them completely unbelievable that aspect of the matter does not assist me in being persuaded that something has occurred.
- My conclusions in this regard are supported by the conclusions reached by the Single Expert that the children did not face an unacceptable risk if they were with their father. If I were to unpack that conclusion, it means in reality that there was nothing in the relationship between the girls and their father, the psychological profile of Mr Rowe or the actions and the influences that have otherwise affected the girls which would lead her to conclude that it is more likely than not that Mr Rowe did engage in some forms of sexual activity with the girls.
- In the face of Mr Rowe’s complete denial that anything of the sort occurred I believe that I can go further and find that in fact none of the sexual abuse alleged did occur. In some cases although a judge might not be persuaded that the abuse did occur, equally the judge may not be persuaded that it did not.
- Having carefully analysed the evidence of both parties over now a considerable period and having had the advantage of the very thorough report from the Single Expert I believe that I can properly find that there is no basis for the allegations of sexual abuse. Accordingly, there is no risk as a result of that finding for the children in being with Mr Rowe.
RISKS WITH THE MOTHER
- What that leaves however is the highly unsatisfactory situation that the girls have seen fit to complain about conduct of Mr Rowe which I have found did not occur. The elaborate psychologically interwoven nature of the relationship between the girls and their mother and the analysis by Dr J of the somewhat fragile nature of Ms Jakeman’s psychological health would support the proposition on the other hand that if the girls are to remain primarily with their mother there is a significant risk that they will be themselves psychologically and developmentally affected adversely. This conclusion is supported by the transcript of the cross-examination of Dr J, particularly at pages 125, 129, 134, 137 and in her report pages 43, 53, 54 and 57.
- What that means, and what the Single Expert recommends, is that the children should live primarily with their father but still continue to have a relationship with their mother. This is a relationship which the father continues to support notwithstanding the actions of the mother and her extreme opposition to his involvement in the life of the children.
- However, it is not only the provisions of s 60CC(2)(b) that determines the question before me although it has been the major issue between the parties during the Court proceeding.
- I have already commented I think sufficiently about the importance to the children in having a meaningful relationship with both of their parents. The children’s relationship with their mother must be supported with professional assistance as has been recommended by Dr J. It is at least a little distressing to me that the mother has not seen fit to adopt a number of the recommendations made. The orders I make will in part require her to do this and I hope she will accept those directions in good heart and will follow them through. The children’s future welfare depends in part upon her being able to cope with and grow from the difficulties that have in the past beset her.
- There are however other considerations that I am to take into account.
- The children have expressed different views about what they want. It is hard to find a situation where those views have not been affected by things that their mother has said or done or caused others to say or do. I am impressed by the fact that the children’s reactions with their father have been at least at odds with some of the negative views that they have expressed about him. I note that this has also been a factor which has influenced the Single Expert in reaching the conclusions that she did. It is important for children’s views to be heard and to be listened to. It is equally important that those views should be presented in a way unaffected by contrary influences. In this case, it seems to me that the children have struggled to be independent of the influence of their mother and have not succeeded on a number of occasions. Although it seems very hard, it may well be that the children’s best interests will be served by their spending more time with their father and some time with their mother in the expectation that in the end they will be less conflicted. This would not be possible if I had determined that there was a serious or unacceptable risk that the children would not be safe with their father.
- I have considered the relationship of each of the children with their parents and with their mother’s new partner. There can be no doubt that each of the parents loves the children. They have different skills and emotional contributions to make to the children’s welfare. Each is to some extent (as are all of us) flawed and neither is capable of being the perfect parent at any time. But then again, no parent is perfect at all times.
- I believe in the light of the evidence and the report, that the children have a genuine potential to have a loving and meaningful relationship with each of the parents.
- It is notable in this matter that the father has persisted in his desire to spend time with the children and indeed has adapted from time to time to the circumstances to take account of what would be best for the children. In that regard he has adjusted his work practices to enable him to accommodate the proposition that the children might live with him in the later stages of this litigation.
- The mother has done everything within her power to protect the children as she saw the need for their protection. The fact that I have found that her vision in this regard was mistaken does not alter the fact that she would do anything that she reasonably could for the benefit of the children. In my judgment what she now needs to do is to let the children go – to spend more time with their father and less time with her. This may be the hardest thing that she will ever have to do as a mother.
- The issue of the maintenance / child support of the children has not been a matter before me. The circumstance for the future would suggest that the primary financial obligation will fall on the father. The mother has, it would appear, but limited capacity to develop the business that she was originally so committed to and it is improbable that she is going to make any financial contributions in the immediate future.
- I have no doubt that if the children are to live primarily with their father, as I propose to order, that this will have a serious negative effect upon them at least initially. They have been so entwined with their mother for so long that it must necessarily be a wrench for them to be in a different situation. I take that into account and balance it against the risks that Dr J has identified of their remaining with their mother. It is a decision that is both difficult and I accept for the mother heart-wrenching.
- It is difficult to predict with any precision what problems will arise with the time that the children spend with their mother if they are living primarily with their father. This depends in part upon where the mother choses to live. It appears that she still harbours some desire to move to G Town and that will to some extent interfere with the possibility of the development of a ready movement between the parents at some point in the future. I note that it may be a difficulty but it does not significantly affect my decision.
- Although it appears that Mr Rowe has some Aboriginal heritage it is not a factor that has played any part in the proceedings before me.
- The issues of family violence are not matters which have borne upon the decision. The parties have now been separated for some time and have in fact been able to communicate quite effectively without any untoward physical actions.
- That does not however detract from the significant animosity that exists particularly from the mother towards the father. That factor means that there needs to be a determination as I suggested above that the father should have sole parental responsibility at least to the extent of having what amounts to a casting vote about major matters relating to the children. I am hopeful that the supplementary orders I make requiring him to inform and to some extent to consult may in due course break down that animosity and enable the parents to behave as parents should, each accepting responsibility for the children. That is a matter within their hands in the future and not one that I can mandate in some way.
- I am not confident that the orders I make will not require some adjustment between the parties in the future. That may require further Court intervention given the radical nature of the change in the children’s circumstances. I am hopeful however, that the parents may, notwithstanding their current and past animosity, be able to find a way to work together at some point in the future for the best interests of the children.
- I wish to explain why I make some of the orders that I do. I have already indicated that the father should have sole parental responsibility and I have nominated some areas where I would expect the parties to at least communicate with each other. I have provided in Order 2(e) that if there is a dispute nevertheless the father’s decision will prevail. I have provided that neither parent will, by enrolling the children in extracurricular activities interfere with the time that the children might otherwise spend with the other parent.
- The Orders I have made about the time the children will spend with their mother have been dictated in part by the recommendations of the Single Expert. I accept that to some extent the findings I have made about the mother’s influence on the children may continue during the periods that they will spend with her in accordance with Order 3. I am, however, conscious of the fact that the children have spent most of their E Town lives primarily with their mother and in my opinion it is likely that a substantial break from those arrangements may cause them great distress. I am sure it will cause their mother great distress. The mother’s distress may have an effect upon the children.
- Accordingly, in Order 3 I have made provision for one month for the children to settle down with their father but thereafter for them to spend every second weekend with their mother and half of the school holidays. I have made provision for special days and provided that there can be variation in any of those arrangements by the parents if the need arises.
- I have provided the children may, in effect, telephone the other parent at any time that they wish (Order 4) and made special provisions for communication from both mother and father to the children when the children are with the other parent. This should not prevent the parents from making other arrangements if they are more convenient but does provide some degree of certainty if such agreement is not forthcoming.
- I have imposed a number of restraining orders which are designed to provide some peace for the children and the hope that as things settle down they will be able to enjoy the time they spend with each parent.
- I propose that the children be on the Airport Watch List for a period of three years. Neither parent should remove the children from Australia during that period without the consent of the other.
- I hope that these orders will provide some certainty for the parties, I sincerely regret the delay I have had in providing these reasons. I have found the decision a very difficult one overlayed by the emotions of the parties, the difficult psychological circumstances in which the parties and the children have found themselves and the multiplicity of evidence that has been provided. I hope the children are successful in their growth towards adulthood with the assistance of two parents who love them.