Risk of sexual abuse

Risk of sexual abuse

Leaton & Tuppahige

Summary – where the parties are in dispute as to the parenting arrangements of the children – where the father alleges child sexual abuse and considers the children at risk in the mother’s care – where consideration is given to the principles relevant to parenting orders – where the Court does not consider the children to be at risk – where it is ordered that the parties have equal shared parental responsibility – where the mother is required to consult with the father but ultimately she is able to make decisions in respect of health and education – where it is ordered that the children live with the mother and spend substantial and significant time with the father – where the father is restrained from subjecting the children to unnecessary examination and investigation.

PARENTING CONSIDERATIONS

Meaningful relationship

312. The parties are not in agreement as to the extent of the relationship that each of them have with the children. As highlighted, the father seeks orders that would severely impact upon the current relationship that the mother has with the children underpinned by the orders of 20 August 2013 wherein the children’s time with the parties is effectively shared.
313. The father seeks that the mother’s time will be restricted to four hours a fortnight under strict supervision.
314. The mother seeks a more expansive order which she says would see the children spending significant time with their father. The ICL generally considers that the mother’s proposal is more likely to be respectful of the children’s needs.
315. Section 60CC(2)(a) provides that it is one of the primary considerations that there is a benefit to a child of having a meaningful relationship with both of the child’s parents.
316. In Mazorski & Albright [2007] FamCA 520, Brown J commented the definition of “meaningful” and said:-

[26] What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”… when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one. Quantitive concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equal shared parental responsibility and the requirement for the time with the children to be, where possible in their best interests, substantial and significant.

317. The father’s proposal would not equate with the promotion or maintenance of a meaningful relationship. There would be a qualitative difference to the relationship between the mother and the children that would exist if orders were made as promoted by the husband.
318. Whilst the attitude of the parties towards the other may well be coloured by the pursuit of their orders and their mistrust of each other, the same cannot be said for Dr N. It would appear that the parties have confidence in his expertise. The father submits that Dr N supports him having the primary care of the children and to the extent that he recommends the mother in those circumstances should have significant and substantial time, the father argues that his opinion must be reconsidered as a result of the admission by Mr L that he spent unsupervised time with the children contrary to the consent order.
319. Whilst not accepting the view of Dr N of the need for these children to have a meaningful relationship with their mother, he nonetheless has confidence in his opinion.
320. True it is that considerations in respect of a meaningful relationship must be subservient to the need to protect the children from physical or psychological harm or being subjected or exposed to abuse, neglect or family violence.
321. As discussed, Dr N does not share the same pessimistic view of the mother as held by the father and as might be concluded from the CPS investigation in 2014.
322. Dr N had the advantage of observing this family, including the parties’ partners from time to time. Five reports have been published over the years that this matter has been before the Court. The final two reports were published after the consent orders and in anticipation of these proceedings.
323. I have not made findings that are consistent with the father’s allegations. I do not consider that the mother presents as a risk to the children either physically (including a risk of sexual abuse or assault) or emotionally and psychologically. The contrary is the position. The mother’s engagement with the children has been the subject of compliment by Dr N and the speech pathologist.
324. Moreover, I considered that the mother presented considerable insight into the family’s predicament and her evidence in respect of the needs of the children and their complicated health issues and management was impressive. I considered that the mother presented as more attuned to the children’s needs than the father.
325. For his part, the father appeared overwhelmed by his pursuit of evidence to substantiate his allegations that the children were at risk.
326. That finding is consistent with the opinion expressed by Dr N.
327. These children, but in particular the older child, have complex needs. The older child is a difficult child to parent as evidenced by the report of the speech pathologist.
328. As such, it is appropriate for the Court to place significant reliance upon the evidence of Dr N, particularly in circumstances where he appears to have the confidence of the parties and the ICL. He is the expert and is best able to assist the Court in determining the needs of the children, thereby enabling the Court to consider, based on the evidence, how those needs can be met to satisfy their best interests.
329. Dr N considers that in the absence of a finding by the Court which would substantiate the risk that the father says the mother and Mr L pose to the children, it is necessary for their development.
330. The position of the ICL is that the children should spend time with each of the parties at least on a substantial basis.
331. I do not consider that the orders sought by the father would assist the children in their development. In the absence of a finding that the children are at risk of abuse in the home of the mother, I am cognisant and bring to account the allegations of the father that the mother and Mr L are deficient in their parenting skills and are not able to exercise proper care. In short, if the children are not at physical risk of abuse, then the father contends that the children may well be exposed to neglect. In that respect the father refers to what he says is the mother’s intellectual disability impacting adversely on her ability to recognise the needs of the children and to provide appropriately for them.
332. There is no evidence before the Court as to any intellectual deficit or deficiency in either of the parties. It is likely that the level of education in the father’s home is more advanced than in the mother’s home. That is different to evidence of intellectual disability.
333. In terms of the level of insight of the parties into the needs of the children, I consider that the preponderance of the evidence clearly favours the mother. Her engagement with health professionals was comprehensive and the subject of favourable comment. Her evidence in terms of the management of the children’s special needs, but in particular the older child, was equally impressive.
334. The pathway through the litigation and over the years has been difficult for the mother. She has been the subject of consistent and ongoing denigration by the father and it could be said that the father’s campaign against her has been unrelenting. She has remained steadfast in her focus on the children and it is not without importance that she remained steadfast notwithstanding child protection investigations, the withholding of the children by the father on a number of occasions, the removal of the children from her care by Court order and her compliance with orders that saw Mr L leave the home on any occasion that the children spent time with the mother.
335. The mother originally sought to establish that the father presented a psychological risk to the children (and possibly physical risk) by his pursuit of evidence to support his contention that the mother and/or Mr L had sexually abused the children and presented as an ongoing risk to them.
336. Whilst she is pessimistic for the future in the sense that once the litigation is over she fears the father will return to a pattern of withholding and notifications to child protection authorities, nonetheless she views the relative peace for the last 15 months as a hopeful sign that the father may accept the outcome of the proceedings represents an end to the conflict.
337. By necessary implication the orders that the mother seeks would be inconsistent with an approach that the father presents as a psychological risk to the children.
338. The father will need to cease his interest in the genital examination of the children and accept that the mother is appropriately caring for the children both personally, but also by a commitment to ensuring that the children attend their various medical and other appointments and that their separate presentations are appropriately managed. Accordingly, whilst I remain concerned about the father’s capacity to be respectful of the relationship between the children and their mother, if the father is given the benefit of the doubt, then it seems to be the opinion of Dr N should be given effect namely, that the children should retain a significant and substantial relationship with each of the parties.
339. It is the evidence of Dr N however, that the litigation now requires a judicial determination, that will result in one party having primary care, but the other party not being entirely disenfranchised from the children’s lives.

Children’s wishes

340. There is no credible evidence that would assist the Court in understanding the wishes or views of the children. The older child is fundamentally incapable of expressing herself. Clearly, the younger child is still young and demonstrably immature.
341. Their observed interaction between the parties would suggest a closeness of relationship, but the Court could have no confidence in any view expressed by either of the children, nor do I consider that any significant weight should be placed on any aspect of the evidence that suggests the children prefer one party to the other or have a view in respect of their current or intended living arrangements.

The nature of the relationship of the children with the parents and their partners

342. I have considered and found favour with the evidence of Dr N that these children have a close relationship with each of the parties. The extension of that consideration to the father’s partner Ms K and the mother’s partner Mr L is more complex.
343. Ms K was clearly well-meaning and has much to offer the children. They appear to relate well to her, but she is clearly strongly associated with the father’s campaign and his adverse and negative view of the mother that she is unlikely to be able to express a separate opinion or view that differs from the father’s view.
344. Once the litigation has concluded it is hoped that the parties will centre and refocus upon the needs of the children rather than the continued dispute between them.
345. Mr L also impressed the family consultant of his relationship with the children. There were however elements suggestive of a lack of sophistication by Mr L in respect of his relationship with the children, but it is absent any threat or risk. It has been acknowledged by Dr N that he provides good support for the mother and notwithstanding the complexity and the competing needs of the children and L Jnr, the mother’s household has functioned successfully.

Parent’s ability to communicate with each other

346. I do not consider that the parties have any real ability to communicate successfully with each other. The mother appears willing to engage with the father, but his response to her and examples of his correspondence, particularly in the period following the making of the consent orders, is entirely disingenuous and disrespectful. In his evidence, the father was unrelenting in his belief that the children were at risk and that the mother has been the perpetrator of sexual abuse on the children.
347. The parties have no ability to participate in decisions in respect of long term issues and an unfortunate feature of the history of the matter is that there has been disputation between the parties in terms of health issues (in particular relating to the older child) and education issues. The mother’s position has softened, the father’s position has not. It is difficult to see how it could be suggested that the parties have an ability to communicate enabling them to be involved in the children’s lives when they are in the care of the other party by reference to the orders that the father’s seeks which restrict the mother’s time with the children to four hours a fortnight, supervised.
348. It is a feature of this case that each of the parties would seek to have “sole parental responsibility” for all aspects of the children’s lives, but in particular their health needs which from time to time are a pressing consideration.
349. Again it should be noted that there has been general compliance with the orders now for an extended period of time.

Effect of any change on the children’s circumstances

350. The unequivocal position of Dr N is that “the children will be happiest if they can sustain strong connections with both households”. His recommendation is informative:-

I have no firm preference for the allocation of sole parental responsibility, but believe it is in the children’s best interests that, whatever the Court’s decision, the other parent be given substantial or regular time (at least four nights per fortnight) with the other party.
Capacity of the children’s parents and other relevant parties to provide for the needs of the children

351. It has never been asserted by the mother that the father is not able to provide for the physical needs of the children. His accommodation shared with his partner Ms K was observed by Dr N and considered to be suitable for the children. Both the father and Ms K are intelligent and well educated people. It is also likely that the father’s financial circumstances are superior to the mother.
352. It has never been the mother’s position that the father is not able to appropriately or adequately care for the children.
353. The consent orders are predicated upon a recognition by each of the parties that the other is able to appropriately parent and care for the children.
354. It is only in respect of the most recent initiating application that the mother determined to seek orders that would give her sole parental responsibility and the primary care of the children.
355. But for the mother’s apprehension that the father will continue to seek to disrupt the mother’s relationship with the children and in response to what she considers is an unrelenting campaign by the father to display both her and Mr L as abusive to the children and therefore placing the children at risk in their care, the mother would most likely have been content for a continuation of the consent orders.
356. Her concern therefore is that the father places the children at emotional risk by his inability to accept that the children are not at risk in the mother’s care.
357. Dr N does not consider that the children are at risk. He is of the view that whilst the father may have the better capacity to support the ongoing management and development of the children, he appears unwilling to support the mother’s ongoing relationship with the children. He views the conflict between the parties to be intractable.
358. The father considers that the mother fails in her ability to parent the children at every level. He has little regard for any relationship that may exist between the children and the mother, considers that she is not able to care for their physical needs and in any event that the children are placed in a position of unacceptable risk by remaining in the unsupervised care of the mother and in particular Mr L.
359. There was no suggestion during the proceedings that the father is more accepting of the benefits to the children of maintaining a relationship with the mother, nor does he gain any comfort from the opinion of Dr N that supervised time for either party is not in the best interests of the children.
360. I am satisfied that notwithstanding the significant trials and tribulations endured by the mother in the course of this litigation, she remains respectful of the children’s relationship with their father and is likely to comply with orders of the Court, not simply because she understands she is compelled to do so, but because she has a level of insight that the children are well served by maintaining a relationship with the father. I have no confidence that the father would have a reciprocal understanding in terms of involving the children in such a process other than by reference to appropriate organisations.

Orders least likely to lead to further litigation

361. The parties have been in constant litigation since the consent orders of 20 August 2013. There have been a number of initiating applications, the children have been the subject of assessment not only by Dr N, but also in terms of CPS investigation. In addition, the children have attended for medical examination involving an inspection of the younger child’s genitals.
362. A principal concern of Dr N is the deleterious effect on the children as a direct result of the ongoing litigation. There is no circumstance where it could be said that litigation is ever in the interests of the children. The evidence in this case is such that the litigation places them at risk.
363. Whilst Dr N recognises the potential for the children to be adversely affected by the ongoing conflict, he is not able to make any recommendation in that regard. Rather, it is a matter for the Court to consider the evidence and bring to account those elements of s 60CC which are germane to the proceedings. In the circumstances of this case, the risk to the children of future litigation is a matter that must be given considerable weight.
364. The ability of the parties to be accepting of Court orders is an important factor to be considered. Whilst I have little doubt that the mother clearly understands her obligation to comply with orders of the Court, I do not have the same level of confidence in respect of the father.
365. The consent orders were barely one month old when the father embarked upon the first genital examination of the child and commenced correspondence with the mother seeking her explanation for the application by the mother or Mr L of cream to the younger child’s genitals. An initiating application was filed soon thereafter.
366. The father has pursued the allegations of abuse and risk and appears to have little regard for the orders that were made, with their clear intention of regulating the involvement of the parties with the children. In particular, the father’s scant heed to the orders providing for the identity of the health professionals who were to assist with the children’s care is of concern and has direct adverse impact on the children.
367. Clearly, the parties are not able to agree matters relating to the health management of the older child and to a lesser extent the younger child, but also the older child’s dental plan. The resolution of where the children will go to school has also been problematic.
368. Dr N considers that the current shared care arrangement has not been successful and of greater importance is that the children have been adversely affected by the inter-parental conflict.
369. Accordingly, he recommends that the Court consider one party having sole parental responsibility or at the very least being able to make decisions in respect of the major issues affecting the children namely, health and education. Moreover, the interests of the children would be better served by residing in the primary care of one of the parties.

CONCLUSION

370. The mother and the ICL consider that the children’s interests would be best served residing in the primary care of the mother, but that they should spend significant and substantial time with the father.
371. The father considers that the children should spend only limited and supervised time with the mother.
372. The common factor underpinning the proposals of the ICL and the mother is a recognition that she is able to support and promote the relationship with the father.
373. The ICL argues that the father has not demonstrated either an understanding of the benefits to the children of maintaining a relationship with the mother and is clearly unwilling or unlikely to promote such a relationship.
374. In circumstances where I have not found that the children are at risk in the care of the mother either in respect of her ability to provide adequately for them and that they are not at any physical risk from either the mother or Mr L, I consider that the children should live primarily with the mother and spend significant and substantial time with the father.
375. The mother seeks that the children spend each alternate weekend from Friday to Monday with the father, but I consider that three days per fortnight is inadequate to enable the father to properly support the children and their needs. Dr N recommends that four days should be ordered and accordingly I consider there is merit in that recommendation properly founded in the evidence.
376. The balance of the orders as proposed by the mother and supported by the ICL are consistent with the children maintaining a meaningful relationship with each of the parties.
377. I also propose to adopt the proposals of the mother and the ICL that she should have the ability to make a final decision in respect of the education and health issues that affect the children from time to time.
378. In the recent decision of the Full Court in Doherty & Doherty [2016] FamCAFC 182, the Full Court considered the interrelationship between the concept of equal shared parental responsibility and the application of s 65DAA. In that decision counsel for the father submitted that because an order provided for the parties to have equal shared parental responsibility “in relation to the child’s name and any change of living arrangements that would make it significantly more difficult for the child to spend time with either parent”, s 65DAA was triggered.
379. The Full Court was required to consider whether it is permissible for there to be an order for equal shared parental responsibility directed to an aspect of parental responsibility or whether it is “an absolute concept”. The Full Court concluded that an order can be made in relation to a discreet aspect of parental responsibility and as such an order that the child’s parents have equal shared parental responsibility for some but not all aspects of parental responsibility would not trigger s 65DAA.
380. In a separate judgment Kent J considered that a parenting order which deals with parental responsibility but which does not have the effect of conferring on both parents an equal share of all of the duties, responsibilities and authority which, by law, parents have in relation to children, cannot be characterized as an order fulfilling the application of the presumption pursuant to s 61DA and therefore not a parenting order which provides that a child’s parents are to have “equal shared parental responsibility” within the meaning of s 65DAA.
381. In Newlands & Newlands [2007] FamCA 168; (2007) 37 Fam LR 103 the trial judge made an order that “except in matters of education in which the mother will have sole parental responsibility the parties will have joint parental responsibility”.
382. The Full Court considered that the Act does not refer to “joint parental responsibility” but rather, to “parental responsibility” and “equal shared parental responsibility”. The Full Court found that the trial judge had not adequately followed the legislation and had therefore created an uncertainty. Their Honours were satisfied that it is permissible for an aspect of parental responsibility to be allocated to one parent and for all other aspects to be the subject of an order for equal shared parental responsibility.
383. The issue was again considered in Chappell & Chappell (2008) FamCAFC 143; (2008) FLC 93-382. The trial judge made orders that the parties have equal shared parental responsibility, but that the mother have sole parental responsibility for the “management of” health and education. The issue in contention was the use by her Honour of the word “management”. The focus of the Full Court was again upon the clarity of the order and its nexus with the Act. The Court found that it was imperative that orders relating to parental responsibility be accompanied by as little ambiguity as practicable.
384. Words not mandated by the legislation should be avoided when allocating parental responsibility.
385. In the first appeal in Doherty & Doherty (2014) FLC 93-571 it was argued that an order for the parties to have equal shared parental responsibility for some major long term decisions and that otherwise the mother have sole parental responsibility in relation to which conditions concerning consultation and the like were attached, could not be construed as an order for equal shared parental responsibility. The asserted error was that the orders made by her Honour were inconsistent and together did not constitute an order for equal shared parental responsibility.
386. The Full Court at [42] found that parental responsibility for some long term issues may be shared while others may not and, additionally, that parental responsibility for some issues might be shared equally whilst others are not shared equally or not shared at all.
387. The Full Court considered that even though the presumption of equal shared parental responsibility may be rebutted by a consideration of the evidence and therefore s 65DAA was not required to be considered, nonetheless this did not mean that the quantity and quality of the time to be spent between the child and her parents had no place in her considerations.
388. In summary and having considered the approach in Chappell (supra), Newlands (supra) and the recent Doherty (supra) it is permissible that an order can be made for equal shared parental responsibility which will not trigger s 65DAA considerations in circumstances where the order is made in relation to a discreet aspect of parental responsibility.
389. I have found that the presumption in respect of equal shared parental responsibility pursuant to s 61DA should not apply.
390. The mother alone should exercise parental responsibility in respect of the health and education needs of the children without the hindrance of the father subject to a requirement that she initially consult with him.
391. I consider that I should order that the parties to share parental responsibility for the children, but that the mother have parental responsibility for the children’s health and education.
392. Dr N considers that the history of the children being subject to genital and medical examination, interview and investigation is not in their best interests when it is considered that there is no substance to the allegations made by the father.
393. I propose to put in place orders that will restrain the father from subjecting the children to unnecessary examination and investigation other than by relevant child protection authorities.
394. I make orders as appear at the commencement of these reasons.