Injunctions in parenting cases can be a mischief:

Newarke & Lathwell [2015] FamCA 1121 (15 December 2015)

Last Updated: 8 January 2016

FAMILY COURT OF AUSTRALIA

The following is annotated. For full case: http://www.austlii.edu.au/au/cases/cth/FamCA/2015/1121.html

“CONCLUSIONS AND ORDERS

Parental responsibility

114. The evidence does not permit of reasonable grounds to believe that either party engaged in abuse of the children or of E, or in family violence, so the presumption of equal shared parental responsibility still applies (s 61DA(2)). The mother’s submission that a finding should be made against the father under both ss 61DA(2)(a) and (b) is rejected, though such rejection is rendered otiose because of the application of s 61DA(4) of the Act.
115. The presumption of equal shared parental responsibility is rebutted by the evidence which proves the best interests of the children would not be promoted by an order of that sort (s 61DA(4)). The parties could not share parental responsibility for the children in the manner contemplated by the Act because their hostility is too pronounced (s 65DAC). The bitterness between them seems irreparable.
116. The father said in cross-examination the parties do not communicate by email or any other means, other than through their lawyers. The mother agreed.^[88] The mother said in cross-examination she would always believe what the eldest child tells her in preference to what the father tells her, such is the extent of her distrust of him.
117. The parties realise they could not share parental responsibility for the children, which is why they both sought sole parental responsibility for them. The single expert agreed. He said in his report the parties had “virtually no communication” and, if there was to be any improvement, it would be painfully gradual.^[89] In cross-examination he was moved to say his prognosis for improvement was worse now than it was then.
118. Only the Independent Children’s Lawyer proposed that parental responsibility be split between the parties. She proposed the mother have exclusive parental responsibility for some aspects of the children’s lives, but responsibility for other aspects of their lives be shared between the parties.^[90] Her proposal is rejected. It was borne of hope for improved relations rather than rational assessment of probability. To avoid dispute and deadlock, one party must have exclusive parental responsibility for the children. That party must be the parent with whom the children live.

Residence with the mother

119. Since the parties are not allocated equal shared parental responsibility for the children it is unnecessary to consider the provisions of s 65DAA of the Act.
120. All of the children’s physical and intellectual needs have been well met in the mother’s residential care. The only real criticism made of her parenting capacity by the father was her alleged inability to meet the children’s emotional need to maintain healthy relationships with him, but his criticism was bereft of any convincing evidentiary basis. The children still love him and want to spend plenty of time with him. The only reason that has not happened is because the parties each preposterously failed to negotiate the use of a cheaper supervisor.
121. Historically, the parties have always been content with the children living with the mother. It was not until late 2013 that the father changed his mind and determined the children would be better off living with him. That decision was motivated by his infuriation at being falsely accused of, and then prosecuted for, sexual abuse of E.
122. The father said in cross-examination that, despite his proposal for an order that the children spend time with the mother, his genuine desire was for the children’s interaction with the mother to be “limited as much as possible”. There is a real risk that, left to his own devices, he would unreasonably try to reduce the mother’s involvement in the children’s lives
123. The evidence does not warrant reversal of the children’s residence, which, as the father conceded, would be a “huge change”. They should remain living with the mother.

Time with the father

124. The mother’s proposal for the children to never spend any overnight time with the father was flawed. It was based on the erroneous premise that the father posed a risk of harm to the children through their sexual abuse, which risk would be more pronounced in the evenings.
125. Since it is primarily important for the children to derive benefit from their meaningful relationships with the father (s 60CC(2)(a)), which objective is not impinged by any need to protect them against any risk of harm posed by him (s 60CC(2)(b)), the children should spend substantial amounts of time with him.
126. The single expert suggested in his report that the interaction between the children and the father should gradually expand over a period of 12 to 18 months, culminating in a regime of four or five nights per fortnight during school terms and half of school holidays.^[91]
127. The single expert slightly revised that proposal in cross-examination. He considered the graduation should be accelerated over a shorter period of about six to nine months, but should still culminate in a regime of about four nights per fortnight during school terms and for half of school holidays. Given the significant interruption of the children’s visits with the father over 2015, the single expert recommended that overnight visits not be introduced until after the 2015/2016 Summer school holidays
128. The orders impose a graduating regime that reaches its zenith in about 10 months, at the commencement of term 4 in the 2016 academic year. The orders gradually introduce more overnight time for the children with the father and, ultimately, the children will spend time with him for four consecutive nights each alternate weekend in school terms, for half of school holiday periods, and on other special occasions.
129. No provision is made for the children to spend more time with the father in the periods between alternate weekends in school terms. That would only complicate the regime, either because it would give the parties more opportunity for conflict at changeovers or, even if the changeovers occurred at school, introduce a little too much instability for such young children. Any extra time would be for the benefit of the father, not the children.
130. The parties and Independent Children’s Lawyer had slightly different proposals about special occasions, but no evidence and no submission was directed to that specific issue, which implied the differences between the proposals were relatively immaterial. The orders make adequate provision for the Christmas period and the Mother’s Day and Father’s Day weekends.
131. Wherever possible, changeovers of the children will occur at their school to avoid the chance of conflict between the parties. Otherwise, the changeover venue is the same local park the parties have used for some time. They both proposed its continued use.

Injunctions

132. Both the mother and Independent Children’s Lawyer proposed the imposition of an injunction to limit the extent of the father’s physical interaction with the children.
133. The mother proposed an injunction of extraordinary breadth, including prevention of the father from bathing the children, undressing them, kissing them on the lips, tickling them below the waist, and applying ointment to their genitals.^[92] The Independent Children’s Lawyer’s proposal was not cast quite so widely, but it still restrained some conduct of that type.^[93]
134. The single expert was open to the idea that the father’s physical interaction with the children could be restricted in some way, but that was only to allay the mother’s fears, not to reduce any chance of the children’s sexual abuse. The single expert considered that if the father did not moderate his behaviour with the children then they might be inclined to make more reports about him to the mother, even if she did not directly interrogate them about their treatment by him. The problem perceived by the single expert was the mother’s inclination to interpret any ambiguity about such reports against the father.
135. I reject the applications for injunctions in the terms proposed. I also reject the father’s implied suggestion that any such injunctive orders should bind both parties equally for consistency. Injunctions of the type proposed would probably cause more problems than they would solve for several reasons.
136. First, the injunctions would be an inducement to the mother to interrogate the children on their return from visits with the father about whether he physically handled them in a way that infringed the injunctions. That would foist the children into the unenviable position of having to report back to the mother about the father’s parenting performance, thereby undermining the trust in their filial relationships with the father. They would become anxious and stressed having to dedicate their allegiance to the mother.
137. Second, the injunctions would introduce an element of artificiality into the children’s relationships with the father. The children are still aged only six and five years respectively. What parent does not have the genuine need to see and touch their young children’s bodies when bathing, dressing, and medicating them? What is wrong with a parent lying on a bed with their young child to read a book, swap stories, or have a wrestle? When one accepts such conduct is not overlayed with the sinister intention of grooming the child for sexual abuse, it is completely normal parental behaviour. The children would come to think of the father as a frigid automaton if he could not interact with them in an ordinary physical way.
138. Third, the proposed injunctions really only aspire to eradicate opportunity for the father to sexually abuse the children, which potentiality only exists in the mind of the mother. The injunctions are incapable of sufficient prescription and are incapable of fulfilling their intended purpose. For example:
     <li “=””>(a) The mother proposed the father be restrained from “bathing/showering the children”, but would that prevent him from even being in the bathroom to supervise them, or would it merely prevent him from applying soap to their bodies?

<li “=””>(b) The mother proposed the father be restrained from “undressing the children by removing their underclothes”, which presumably means it would be permissible for him to help remove at least their dresses, jeans, shorts, and shirts.<li “=””>(c) The mother proposed the father be restrained from “laying on the bed with [the children] and tickling, rubbing or patting [them]”, which would not prevent him doing exactly the same thing in some place other than on the bed.<li “=””>(d) The mother proposed the father be restrained from “us[ing] language that is not age appropriate with the children”, which is utterly incapable of enforcement because of legitimate differences of opinion about what is age-appropriate language for the children and because the concept would vary with the changing maturity of the children.

139. As an example of how such injunctions can work mischief, the father was forced to concede that when he towel-dried and changed the youngest child at the beach in June 2014 in the presence of a supervisor (when the child was still not even four years of age) he was in technical breach of the interim injunction.^[94] His cross-examination on the issue by the mother at final trial in December 2015 demonstrates her intent to earnestly and rigorously enforce such injunctions.
140. The mother also proposed a separate injunction precluding the father from approaching her, either at her residence or various other places, other than in the case of emergency.^[95] While it is not unreasonable for the mother to want the father to stay away from her home, no issue was made by her of any unsolicited attendance by the father at her home after her return to Sydney from J Town in late 2012. It is not unreasonable for the father to expect the same courtesy. Neither has any reason to attend the home of the other. Therefore, an injunction is made precluding their attendance at the other’s home, but the remainder of the injunction sought by the mother is rejected. That would only import argument about which party approached the other and what amounts to a genuine emergency.
141. The mother also proposed a separate injunction precluding the father from contacting E in any way.^[96] While s 68B(2) empowers the Court to grant an injunction in relation to a child when deemed just or convenient to do so, the evidence did not establish the justice or convenience of such an order to protect E.
142. The father said in cross-examination he would submit to an injunction that restrained his contact with E, but his willingness alone is not determinative. The apprehended violence order previously made by a State court for E’s protection from the father at the time of the father’s prosecution has long since expired.^[97] So, while this Court is not precluded from making a further injunctive order (s 114AB), E has already had the benefit of personal protection for the period deemed necessary by the State court. In these proceedings, the evidence did not establish the father had been in contact with him since the apprehended violence order expired. In fact, the father said he did not want to contact him and had no intention of doing so. E attains his majority in October 2016 and will no longer be a “child” for the purpose of s 68B of the Act and, in any event, he is apparently departing for Japan indefinitely in February 2016, so any injunction would only have very limited operation.

Supervision

143. The mother proposed that the children be supervised when with the father until the youngest child reaches 12 years of age, some seven years hence.^[98] The Independent Children’s Lawyer’s proposal was more diluted, to the effect that until the youngest child attains 12 years of age the father “use all reasonable efforts” to ensure that either Ms F or the paternal grandmother are present at his residence when the children stay with him overnight.^[99]
144. The Independent Children’s Lawyer did not clearly articulate why she proposed that the father simply be required to make an effort to have another adult within the same house, albeit not in the actual presence of he and the children, when they stay overnight with him. The reasons given by the mother for the need of the children’s supervision with the father were, first, her worry about the children’s sexual safety, second, her concern about the father’s recognition of personal boundaries, third, her concern about the father’s parenting capacity, and lastly, her worry the father would denigrate her to the children.^[100]
145. The last of those concerns is hopefully cured by an injunction that was sought by both parties and the Independent Children’s Lawyer.
146. As to the first three of the mother’s expressed concerns, the evidence did not vindicate them. Having found the evidence did not establish the father posed a risk of harm to the children through their subjection to sexual abuse or neglect, there was no foundation for the imposition of supervision. That was similarly the view of the single expert in cross-examination.
147. It is doubtful that the mother’s subjective apprehension of such risk would be allayed by the imposition of supervision on the children’s interaction with the father. No matter how prudently or imprudently he acts in the future, she will not likely dispense with her worry about him. Nonetheless, the father’s foolhardy boast he would not moderate his behaviour at all to appease the mother will probably elevate rather than abate her concern. Unless there is some change, there is every chance another comment will be made by the children about the father that will cause the mother concern and litigation will again ensue. If so, next time, the outcomes will likely be limited to either severe restriction upon the father’s involvement in the children’s lives, or alternatively, their move to live with the father and severe restriction upon the mother’s involvement in their lives.

Other orders

148. The mother and Independent Children’s Lawyer sought an order that the mother’s solicitors surrender the children’s passports to her.^[101] There is no need to make such an order. The orders discharge all previous orders relating to the children, which includes the past order about the children’s passports,^[102] and the mother now has sole parental responsibility for them in respect of all “major long-term issues”, which would include the power to direct her solicitors to release the children’s passports to her.
149. Nor is there any need to make the orders proposed by the mother regulating her international travel with the children,^[103] or the schools the children should attend.^[104] Her allocation of sole parental responsibility is enough to deal with those matters.
150. For the same reason, the Independent Children’s Lawyer’s proposal for an order compelling the mother to submit the children to “protective behaviours counselling” is rejected.^[105] The single expert agreed with a proposition that the children should receive “protective behaviours counselling”, but that will be a matter for the mother. She now has sole parental responsibility for the children, so she should exercise it as she sees fit.
151. The single expert did not foresee that E would try and sabotage the children’s visits with the father but, to the extent he might, that will be an eventuality for the mother and E’s current therapist (Dr N) to avert. An order is made permitting these orders, these reasons, and a copy of the single expert report to be provided to Dr N in case those documents will assist his therapeutic treatment of E. The mother invited the Court to make any further orders deemed appropriate.^[106]
152. The remaining orders either reflect miscellaneous orders sought by the parties and Independent Children’s Lawyer or are orders that could not attract reasonable complaint.”