Harm and reversal of living arrangements – Bendon & Bendon (No 3)  FamCA 1065 (2 December 2015)
Last Updated: 16 December 2015
FAMILY COURT OF AUSTRALIA
Family Law Act 1975 (Cth)
Briginshaw v Briginshaw  HCA 34; (1938) 60 CLR 336
Champness & Hanson 2009 FLC 93-407;  FamCAFC 96
In the marriage of B & B (1993) FLC 92-357
M v M (1988) 166 CLR 69
Mazorski & Albright  FamCA 520; (2007) 37 Fam LR 518
McCall & Clark (2009) FLC 93-405;  FamCAFC 92
Slater & Light  FamCAFC 4; (2013) 48 Fam LR 573
21 – 23 & 26 – 28 April 2015
The following is annotated. For full case: http://www.austlii.edu.au/au/cases/cth/FamCA/2015/1065.html
- The issues in this case, as identified in the parties’ affidavit material and the Family Report, and during the course of the hearing may be summarised as follows:-
- Whether the children have been sexually abused or exposed to sexually inappropriate behaviour by the father;
- Whether the father poses an unacceptable risk of sexual abuse to the children;
- Whether the children are at risk of harm in the mother’s care due to her failure to provide an appropriate level of care for the children, particularly having regard to the needs of D and F who have been diagnosed with Cerebral Palsy;
- Whether either parent poses an unacceptable risk to the children and the consequences from a finding of unacceptable risk;
- The extent to which the children have been exposed to the dispute between the parents and the impact of such exposure;
- The capacity of each parent to appropriately care for and make decisions regarding the care, welfare and development of the children;
- With whom the children should live;
- The time the children should spend with the non-resident parent and whether such time should be supervised.
Have the children been sexually abused by the father? Does the father pose an unacceptable risk?
- As noted earlier in this judgment there has been a long history of allegations that the children have been exposed to sexual abuse or sexually inappropriate behaviour by the father. The mother’s evidence suggests that she holds a strong belief that the father has behaved inappropriately. Although I am not required to make any finding as to whether or not the children have been exposed to sexual abuse, there is a significant burden placed upon these children as a result of the mother’s beliefs and those of her family.
- The mother’s allegations have exposed the children to ongoing investigations and enquiries by their general medical practitioners, the police and DHS. In my view, the timing of the children’s alleged disclosures in the context of orders made for the children to spend time with the father is significant. The evidence of Ms B is that it is her view that the mother is manipulative and that the children have been subject to the mother’s manipulation in endeavouring to orchestrate a situation where the children’s time with the father is limited. There is force in that view when one considers the pattern of the children’s attendances upon police, DHS, medical practitioners and F’s teacher in order to make disclosures.
- I am satisfied and find on the balance of probabilities having regard to the significance of the finding I must make in this case that the children have not been sexually abused by the father. That finding has been made in circumstances where:-
- there is no consistency as to the allegations and disclosures made by the children;
- there has been a substantial delay on the part of the mother in reporting the alleged disclosures;
- it is clear that the mother and the maternal grandmother have attempted to influence or coach the children to make disclosures to the professionals who have been engaged to assist them;
- there is no physical evidence of abuse.
- Throughout his evidence, the father presented as a concerned and loving father who seeks to protect the children from the impact of the mother’s behaviour. I observed him closely when he was being cross-examined. His evidence was thoughtful and child-focussed. It was clear both from his oral evidence and his physical presentation that he found the allegations made against him deeply disturbing. Having regard to those matters I am satisfied on the balance of probabilities that the father does not present a risk of harm to the children.
Are the children at risk of harm in the mother’s care?
- Whilst I do not hold concerns for the children being at risk of harm in the father’s care, in light of the findings I have made already that the mother has supported and indeed promoted the children’s view of their father as a perpetrator of abuse, I hold significant concerns for the children’s psychological well-being when in the care of the mother. The evidence of Ms B supports those concerns. As to the impact of the mother’s behaviour on the children, Ms B reports at paragraph 113 of the Family Report that:-
The children are mightily burdened by their responsibility to support their mother’s view of events. That her view is specious is observed both from the children’s continuing ‘approach-avoidance’ behaviour observed with their father, and in the manner in which the children’s behaviour altered towards [the father] [sic] after luncheon with their mother. The credibility of the allegations is significantly undermined by the children’s inability to report any knowledge of allegations other than repeating their mother’s descriptions, which by virtue of her conceptual limitations lack detail, specificity and realism. [The father] asserted [the mother] treated the children ‘…as objects,’ and although [the mother] attends to the children’s basic functional needs, there is an absence of emotional connectedness noted between mother and children as the children are not individuals but fulfil a role designated as helping their mother “…win”.
- Ms B’s view of the consequences for the children were they to remain living with the mother is stated at paragraph 114 of the Family Report. She states that:-
… If left in their current circumstance the children’s future appears bleak and their ability to co-operate with others, to have a realistic appraisal of events or to be honourable in their dealings with others and develop positive relationships appears marginalised. The stage has been set for the children to examine future relationships with others, as does their mother, through the lens of sexual abuse.
- Ms B expanded upon her views during cross-examination. When questioned by counsel for the ICL in relation to her recommendations in the event of a finding that the father poses no risk to the children, Ms B stated that the mother should not spend time with the children upon commencing to live with the father because:-
…it goes to the heart of what the children have been experiencing at the mother’s direction, which is a process of implanting ideas and beliefs in the minds of the children, of getting the children to conduct themselves in ways that do not support …them having a relationship with the father or any of his family. The children’s minds have been quite polluted by the conversations that have been had with the mother.
- Later during cross-examination by counsel for the mother, Ms B was asked to assess the risk to the children if they remained in the mother’s care. Ms B observed that:-
…When people hold entrenched views sometimes there is no degree that they won’t go to in order to maintain and preserve that view. I do not know to what degree [the mother] would go, but she has been pretty persistent and determined and manipulative, in my view in this current circumstance. And so one of the judgments that I made was on the basis of past behaviour, is she likely to let her story go easily, and my answer was a resounding no.
- I accept the evidence of Ms B which accords with my own observations of the mother and the maternal grandmother as to their commitment to paint a picture of the father in the worst possible light as a perpetrator of sexual abuse; that conduct in my view is a form of emotional abuse from which the children must be protected. I am satisfied that the mother and maternal grandmother are unable to contain their views about the father and the risks they perceive he poses to the children. As a result, I am satisfied that the children are at risk of emotional and psychological harm in the care of the mother and maternal grandmother.
Findings regarding allegations of physical and psychological risk
- Having regard to the above matters, I am satisfied that the concern of the father that the children are at risk of harm in the mother’s household is well-founded. I am satisfied that the children have been exposed to conversations, discussions and reactions to those discussions by the mother and Ms J that have influenced the children’s view of the father; they have lived in an environment where disclosures of inappropriate behaviour by the father are promoted and encouraged. Based upon the evidence of Ms B there can be no doubt that the children are well aware of the attitude of the mother and Ms J towards the father. I am satisfied on the basis of the evidence of Ms B that that behaviour has compromised the children’s psychological health.
- The evidence of Dr C is that even with therapeutic counselling, the mother’s attitude and belief system with respect to the father is unlikely to change. Having observed the entrenched views expressed by the mother and Ms J, I accept that evidence and share those concerns. Accordingly, I am satisfied that the children are at risk of psychological harm if they continue to be exposed to that behaviour.
- I am also satisfied that the children’s physical care has been neglected by the mother. She has failed to ensure that the children receive on-going medical attention to address their needs; D and F have cerebral palsy and they have received no medical support or intervention since they commenced living in Victoria in September 2013. All of the children have issues with incontinence for which they have received no medical intervention or support.
- I am also satisfied that D was placed at risk of physical harm as a result of the mother’s abandonment of him on the roadside, by being placed in a wheelie-bin by Ms J and by being choked with a towel by Ms J’s husband.
- Having regard to my findings in relation to the above matters, I am satisfied that the children are at risk of psychological harm and physical harm in the mother’s care.
- The first matter which I must determine is the question of the allocation of parental responsibility. Each of the parties seeks an order for sole parental responsibility. The father’s application for sole parental responsibility is supported by the ICL. The mother has made what the father describes as “heinous” allegations against him. The parties’ capacity to communicate effectively with each other has been irreparably damaged as a result of those allegations. There is a high degree of distrust between the mother and the father. As a result of the evidence of Dr C as to the mother’s functioning and based on my own observations of her during the hearing, I have grave concerns as to the mother’s ability to elevate the children’s needs above her own. Accordingly, having regard to those matters, I am satisfied that it would not be in the children’s best interests if the parties were to have equal shared parental responsibility. Given the mother’s intransigent views regarding the father and his role in the children’s lives, I am satisfied that there should be an order for the father to have sole parental responsibility.
- Given my findings as to the risk to the children of psychological and physical harm in the mother’s care I am also satisfied that it is in the children’s best interests that they live with the father. The evidence of Ms B supports my view that the children’s opportunity for a settled life, where all of their physical, emotional and intellectual needs are met is provided in the father’s home. I accept Ms B’ evidence that if removed from the influence and belief system of the mother, the children will be unburdened and their relationship with the mother will benefit.
- I have made findings that the children are at risk of psychological harm in the mother’s care. There is no evidence before me of the mother undertaking any regular therapeutic treatment to address those issues. The mother in her evidence demonstrated an inability to moderate or contain her attitudes and behaviours towards the father, and did not demonstrate any insight as to the damaging effect of that behaviour upon the children and their relationship with the father. Accordingly, I am satisfied that the children’s time with the mother must be supervised.
- The evidence of Ms B supports the view that the mother’s time should be supervised by a professional contact centre or agency where practicable. I will make orders requiring the ICL to nominate contact centres in Perth which provide supervision services. In the event that no such agency is available, the paternal grandfather is able to fulfil that role. Accordingly, I will make orders that the paternal grandfather supervise the mother’s time in the absence of any other professional agency being available to fulfil that role.
- The children should spend time with the mother during school holidays and after school on up to six occasions per year to ensure that the children have the opportunity of regular time with the mother.
- Ms B supports the children continuing to have communication with the mother via Skype and telephone. That is a means of communication where the children can see their mother. It is also a means of communication that can be terminated in the event of the mother engaging in inappropriate conduct. I am satisfied that it is appropriate to make orders to facilitate such communication. I will also make orders permitting the mother to provide written communication to the children by way of letters, cards or gifts.
- The mother should also be provided with information as to the progress of the children’s education and medical treatments. I will make orders ensuring that that information is provided to her.
- That the mother’s role in the children’s lives is to be limited by these orders is a matter of great sadness for the children. However, I am satisfied that such limitation is necessary in order to protect the children from the damaging effects of the behaviours of the mother and the maternal family; since the children’s arrival in Victoria, they have been exposed to an on-going and relentless campaign by the mother and her family against the father. The father’s positon in the eyes of the children has been besmirched and undermined as a result of the repeated allegations that he has abused the children. I am satisfied on the balance of probabilities that there is no foundation for those allegations. I am also satisfied that if left in the care of the mother, the children have little prospect of ever having a meaningful relationship with the father. The orders will ensure that the children have the opportunity of a relationship with both parents. Further, the orders will ensure that the children’s physical and emotional needs are met in circumstances where I have found that the mother has failed to attend to those needs.