Abbott and Barker

FAMILY COURT OF AUSTRALIA

ABBOTT & BARKER

[2010] FamCA 600

FAMILY LAW – CHILDREN – Child related proceedings – sexual abuse – supervised time spent

Family Law Act 1975 (Cth)

APPLICANT:

Mr Abbott

RESPONDENT:

Ms Barker

INDEPENDENT CHILDREN’S LAWYER:

Rimmer Lawyers

INTERVENER:

Department of Communities (Child Safety Services)

FILE NUMBER:

BRC

4965

2008

DATE DELIVERED:

14 July 2010

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Justice Fowler

HEARING DATE:

12-13 July 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr George

COUNSEL FOR THE RESPONDENT:

Mr Sumners

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER

Mr Ashcroft

SOLICITOR FOR THE INTERVENER

Mr Munro

Orders

The child E born … August 1995 (“the child”) live with the father.
The father have sole parental responsibility for the child.
The father keep the mother informed of the name and address of every school, health practitioner, including doctors, that the child attends.
The father provide the mother with copies of school reports and medical reports in relation to the child by electronic means as agreed between the parties.
The child spend time with and communicate with the mother at all times as may be agreed between the parties and, failing agreement then:
(a)Supervised time on the last weekend of each month at the Y Contact Centre (the “Contact Centre”)
(b)The mother be at liberty to have other persons attend these visits, specifically including T Abbott, the paternal grandmother and the paternal uncle M Abbott, subject to the approval by the Contact Centre
(c)By telephone each Tuesday afternoon between 4.30 pm and 5.00 pm
(d)By email, MSN, Skype or other internet communications agreed between the parties provided that such communications are monitored.
All parties will ensure that the child does not have any unsupervised time or communication with her brother L Abbott born … April 1993.
There be no orders made in relation to the child L.
The father be at liberty to record and monitor all electronic communications between the child and her mother and any communication between the child and her brothers L and T Abbott.
The father inform the mother, as soon as possible, of any serious health or educational issue affecting the child.
The parties keep each other informed of their email address and mobile number for the purpose of these Orders.

Notation

Where possible, the child’s brother T will be present at contact as set out in paragraph 5(a) of these Orders.

IT IS NOTED that publication of this judgment under the pseudonym Abbott and Barker is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: BRC4965 of 2008

MR ABBOTT

Applicant

And

MS BARKER

Respondent

And

RIMMER LAWYERS

Independent Children’s Lawyer

And

DEPARTMENT OF COMMUNITIES (CHILD SAFETY SERVICES)

Intervener

REASONS FOR JUDGMENT

Introduction

The proceedings before the court are proceedings in relation to the parenting arrangements for E who was born in August 1995 and is presently aged nearly 15 years of age.
The parties to the proceedings have settled much of the issues which were in dispute between them at the commencement of the proceedings.
It is now agreed that E live with her father.
It is agreed that the father have sole parental responsibility for her.
It is agreed that the child should presently spend time once per month with her mother who lives with the child’s paternal grandmother.
The parties agree that the present regime that the child spend time with the mother supervised by a contact centre continue for a time.
The parties agree that the child should have continuing telephone contact with the mother including Skype contact which is supervised.
The parties agree that the supervised time spent with the mother by the child might also include the paternal grandmother and the child’s sibling, T, a child born to the mother following a post separation relationship by her with the father’s brother, M Abbott.
The parties agree that the child should spend time with her brother L on the telephone or by computer - either by Skype transmission or another form of transmission - which can be recorded and supervised. Although apparently not quite as amenable to accurate supervision the child has had some contact with her brother L on “Facebook”.
From that point the agreement ends and the father seeks substantially simply a continuation of the status quo as to contact, that is to say supervised contact for two hours on the last day of the month and some telephone contact.
The mother seeks expansion of the time spent with her daughter devoid of supervision and for a period initially one day per month extending in time to two days per month on a Saturday and Sunday.
There is no issue that the child loves her father, her mother and her paternal grandmother however she has expressed the view that she could not return to live with the mother and paternal grandmother.
There is no issue that the child has expressed some desire that the continuing regime of supervised time be abandoned but not that the time spent with the mother should increase.
The child, who was removed from her mother’s care after certain disclosures of her being inappropriately sexually dealt with, has of recent times resided with her father who lives in D which is located some distance from the mother’s residence at O and in households of modest means appropriate arrangements for contact between mother and child carry with them a burden of significant cost in time and in money particularly for the father. He it is who has to meet most of the costs of travelling to and from the contact centre and he also bears one-third of the costs of the supervision of the time spent with the mother.
On anyone’s version of events this is a case where the child has been subject to sexual abuse and where her elder brother has sexually abused her younger brother. She has lived in a world of continual conflict and disharmony. She has suffered because of it. She has lacked in self-esteem and she has in the past been somewhat of an isolate.
Equally it is commonly agreed that since she has been living with her father and step-mother and their children her attendances at her new school have produced a significant change in her results in school. She has, it seems, developed friendships and is making academic progress. She has been given high awards for inspirational good behaviour.
The child has joined the “Cadets” whose activities she engages in after school on a Friday. She attends with some of her school friends and meets people outside her usual circle of friends. She has I am told been engaged in fund raising as part of her activities with this group.
During that same time it appears that the child has progressed well with counselling she has undertaken at a programme known as “Bravehearts”, designed for children who have suffered the trauma of abuse, and her counsellor has said that she has come a long way and it is likely that her attendance is going to be reduced from weekly to fortnightly or three-weekly.
The child has now clearly expressed the view that she wishes to continue to live with her father and, the mother, to give her credit, acknowledges the progress she has made and the sincerity of her desire to live with her father in her consent to the orders for residence and parental responsibility.
With her father she has, it appears, security and stability. She has a good relationship with her step-mother, the father’s partner, and, allowing for the differences in age, a good relationship with her father’s two young children by his partner.
The father says that unsupervised contact with the mother raises the possibility of emotional, physical, psychiatric or sexual harm to his daughter.
The mother says that the reasons for that danger have passed and that there is no danger of recurrence in her care notwithstanding the historical facts and the opinions of the experts in the case.
In these circumstances the court must determine what is the arrangement for this child which best serves her welfare and which will provide for her that stability and security and safety she previously did not have and provide an absence of the conflict and trauma which has until recently so characterised her life.

Background Facts

Where in this judgment I make statements of fact they are, unless otherwise specified, my findings of fact.
In 1947 the paternal grandmother was born.
In 1968, Mr Abbott, the father, was born.
In 1969 the mother, Ms Barker, was born.
In June 1992 the relationship between the mother and the father commenced.
In April 1993 the child L was born to the mother and the father.
In 1995 the relationship between the mother and the father ended.
In August 1995 the child E was born.
In 1999 E was sexually abused by Mr AN, a friend of the mother. He was subsequently charged, convicted and imprisoned.
The father says that he was informed by Ms V that Mr AN had behaved inappropriately with her daughters and that she had informed the mother of that fact.
In 2001, B Barker, a brother of the mother, sexually abused E. He also was charged and convicted, and committed suicide.
In 2003 the father’s child A was born.
In 2004 the parties enter into consent orders in relation to the care of the children E and L.
In September 2005 the child L lived with the father until January 2006.
In September 2005 the father’s child S was born.
In February 2007 the children T and E were removed from the mother’s care by the Department following revelations that T was anally penetrated by his brother L.
In early 2008 the father commenced visits with E which by March became weekend visits.
In July 2008 the father removed his residence to D.
T and E at Christmas 2008 spend some five weeks of time at the father’s home.
In February 2006 E commenced living with the father and T was placed by the Department with his father, M Abbott.
At the time of the hearing there was a regime in existence for the child

E to spend supervised time with her mother at a contact centre some distance from her home. That supervised time took place at the premises of an organisation known as Y Contact Centre. Presently the arrangement is for a period of two hours on the last weekend of each month and it is this arrangement the mother seeks to change.

The Issues

Ultimately the issues in this case were whether the mother should have contact with the child monthly on one weekend on an unsupervised basis after a short period of time and what period should be involved in such contact.

Relevant Law

Legal principles

The principles governing this case are set out in the Family Law Act 1975 (“the Act”). In deciding whether to make a particular parenting order I must regard the best interests of the child as the paramount consideration (see section 60CA). In determining what is in the child’s best interests, I must consider certain matters under section 60CC. Those matters are the “primary considerations” and the “additional considerations” set out in that section.
I am required to ensure that any order I make is consistent with any family violence order and does not expose a person to an unacceptable risk of family violence, to the extent that doing so is consistent with the child’s best interests being treated as paramount (see section 60CG).
I will also be guided by section 60B which sets out the objects of the part of the Act dealing with the child and the principles underlying it.
I am required to consider matters set out under section 60CC(4) and (4A) of the Act. Without specifically setting out what those matters are I state that I will in these reasons deal with those matters.
Section 61DA(1) requires that:
… When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.
Subsection (4) provides as follows:
… The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
Section 65DAA requires me to consider the child spending equal time or substantial and significant time with each parent, where the court is proposing to make an order that the child’s parents are to have equal shared parental responsibility.
The Court does not propose to make an order that the child’s parents have equal shared parental responsibility and neither party seeks such an order. Each party proposes that the father have sole parental responsibility for the child. Accordingly, I do not have to consider the child spending equal time or substantial and significant time with each parent. Like the parties, I find that an order for equal shared parental responsibility is not in the best interests of this child and that in like manner the child spending equal time with each parent is not in her best interests. It is in her interests that the child at this time spend time with the mother in the circumstances and for the period set out in my orders.

Section 60CC Considerations

Primary considerations

(a)the benefit to the child of having a meaningful relationship with both of the child’s parents

There is ordinarily a benefit accruing to a child of having a meaningful relationship with each of the child’s parents.
However the facilitation of the maintenance and development of that relationship is subservient to the child’s best interests.
In this case the child clearly has a meaningful relationship with her mother and grandmother. She has declared it so and expert evidence supports the view that that is so.
This is not a case where the continuation of that relationship should be ended. Neither party seeks that. The interests of the child require it to continue subject to the safeguards that I intend to employ to ensure that the pursuit of that relationship does not cause any repetition of the harm which has been caused to the child whilst in the mother’s care formerly.
Those safeguards should remain in place until such time as there is certainty that the child is able to adequately protect herself. I do not find that that certainty presently exists.
The child has a good relationship with her father and that will continue.
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
This child has been exposed to physical and psychological harm and abuse and neglect. There is no evidence that she has been exposed to violence at the hands of either parent. There is some evidence that L, her brother, has behaved violently but no evidence as to whether that was in the presence of the child or otherwise.
The child protection worker of the Department of Communities gave evidence that the Department had the following child protection concerns namely:
33.The mother and grandmother have been assessed as unwilling and unable to protect the mother’s children at this time as they have failed to protect the subject child from sexual abuse …
E has been the victim of sexual abuse whilst in the mother’s care as set out above. Her brother, who resides presently with his mother (although the mother asserts that this arrangement can be changed), is himself also guilty of sexual abuse of his younger brother, the subject child’s half brother T.
The mother at some length set out in her affidavit how she handled this problem when it arose and I have some sympathy for the view she expressed that she has not been given credit for the steps that she took to seek help. However her attitude aliunde to the incident demonstrates a lack of insight into its detrimental short and long term effects on T and its seriousness.

E continues in long term therapy required by reason of the abuse that she suffered.
The child protection worker goes on to comment to the effect that:
34. The family has failed to provide a hygienic and safe home. …
There was an emphasis by the Department that there had been no improvement since the children were removed from the home but it seems from the mother’s evidence that such an attempt at improvement has more latterly been made.
The Department’s records refer to animals living in the house and a strong animal odour emanating from the house.
This odour was, said the father, to be evident on L who was brought to court by the mother on the first day of hearing. There appears to be a risk that not all the problems referred to by the Department at the mother’s home have dissipated.
The child protection worker from the Department says amongst other things:
35.The mother and paternal grandmother have failed to seek medical attention and/or psychological treatment for the subject child due to previous sexual abuse.
36.The mother and paternal grandmother have failed to protect the subject child from emotional, physical and sexual abuse and risk of emotional, sexual and physical abuse resulting from [L’s] sexual offending behaviour for which he has received criminal convictions.
37.The mother and grandmother have failed to demonstrate that they are able to take actions to protect all the subject children in the home from various harms. This is evidenced by both [E] and [T] being exposed to sexual harm while in their care. [E] and [L] have been abused by [Mr AN] while in the care of her mother and [T] by [K Abbott]. This has also led to emotional harm being experienced by both children. It is my assessment that given the ongoing themes of sexual abuse in the family system and the lack of protective ability exhibited by both the mother and the grandmother, the return of [L] to the family home, reunification to the mother’s care would place the subject child at unreasonable risk of harm.
38.Neither the mother nor grandmother have demonstrated an insight into the emotional harm and risks of harm resulting from the unhygienic and unsafe home environment, however on a recent visit to the home it was noticeable that there was new flooring and I did not notice the holes in the walls or animal faeces that have been previously reported. (The mother denies the presence of animal faeces in the home at any time).
39.Neither the mother nor the grandmother have demonstrated an insight into their role and responsibilities to the children in regards to the child protection concerns raised currently and in the past.
40.The mother … shows limited understanding of the impact of sexual abuse … has been evident by her comments such as those reported during the investigation and Assessment procedure “the mother stated “this is ridiculous” and that “he ([L]) didn’t want to hurt him ([T]). He used margarine (as a lubricant to assist anal penetration of the child) for christ-sake”. The mother did not appear to comprehend the effect of the sexual and emotional abuse of [T]. It was … that the mother and grandmother believed that [L] was “being sexually explorative with [T]”, that there had been no counselling organised for [T] and the mother stated that she did not take [T] to the doctor as he was not in pain. Mother did give [T] a Panadol.
…
42.It was further assessed during the Investigation and Assessment process that the subject child and his siblings are at risk of further impairment to their social and emotional development due to neglect by the mother and paternal grandmother should they return to their care, as they have failed to demonstrate an ability to protect the subject children from sexual abuse and demonstrate a poor awareness of child sexual abuse and the impact of such on the subject children, despite having two previously recorded incidents of sexual abuse of a child in their care. This was evidenced by their statements that they were aware of signs of sexual abuse … however they did not act upon this and also failed to consider that a male child could commit a sexual offence against another male child.

The mother approaches the events in her life with an air of unreality. The reports made by the experts conclude in relation to the mother as follows.

Dr G, Psychiatrist

Dr G in an Opinion offered in November 2008:
[E] has at this stage of her life experienced very significant abuse and has displayed symptoms of depression. Her thought content indicates very low self esteem and a tendency to self blame. It is highly likely that she will experience confusion about sexual boundaries and she may develop depressive symptoms and symptoms of posttraumatic stress disorder as she matures.
It is difficult to anticipate that her needs will be met if she returns to the care of her mother and grandmother. However I believe that she should have regular contact with them which should be supervised. (emphasis added)
In her report the Doctor reviews the mother’s psychiatric and familial history and concludes:
[The mother] describes an extremely dysfunctional childhood. She accepts her diagnosis of borderline personality disorder. I note that on occasions she has slipped into psychotic episodes but she is not showing significant psychotic symptoms at the time of my assessment. I believe her own distorted perception of boundaries would mitigate against her being the primary carer of [E].

Mr C, Psychologist

Mr C made a report of 14 December 2009 and also gave oral evidence.
In his report Mr C reports on his interviews of the mother and the father and the father’s brother M - the father of E’s half brother T. He relates the results of various tests he administered and reports on the interviews he had with the child and her two siblings and the paternal grandmother and the child’s step-mother.
He makes, inter alia, the following observations on the mother:
47.[The mother] had extensive burns to her forearms from self-harm and suicide attempts. [The mother] made intermittent eye contact, her mood was angry and nervous and her affect was flat. She spoke with a disorganized flow of speech that was moderated and modulated in tone and volume. She demonstrated poor short, medium and long term memory recall and stated proudly that she had no friends. (Her reason being they could not be trusted). … [The mother] has the defensiveness style of externalisation and was mostly critical of others throughout the course of the interview.
Mr C conducted testing aimed at assessing the mother’s capacity to protect he children from harm and a number of psychological tests. His summary was in the following terms:
52.[The mother] is a 40 year old female. She described a childhood that was compromised by being a child placed in care, and she presented as a suspicious, angry and depressed person on the day of the assessment. [The mother] has been diagnosed as suffering from features of Borderline Personality Disorder. The essential features of this personality problem are behaviours aimed at reducing real or imagined fears of abandonment. Across the course of the assessment [the mother] provided responses that in the main demonstrated a reduced capacity to protect her children from harm. She reported her lack of motivation to enquire about [L’s] treatment, and maintained a view that because [L] had been charged and convicted he no longer represented a risk to [T], or [E].
53.[The mother] was defensive throughout the interview and appeared to internalise her responses and on other occasions was tangential and externalised blame in responding to questions. She had difficulty taking the perspective (empathic understanding) of [E] and turned her responses to her deceased brother who had sexually abused [E].
In assessing the child E, Mr C came to the following conclusion:
121.In sum, [E] is a child who is the victim of childhood sexual abuse. She reported problematic mother/child relationships, and described a family environment, when living with her mother and grandmother, that seemed to be devoid of monitoring and care. Consequently, she was placed at risk of sexual abuse, did not regularly attend school and reported to experience sub-standard levels of care and discipline. Conversely, [E] reports that through living with her father she is improving in her educational performance, has established a stable peer group, and is involved in extra-curricular activity and feels secure.
His recommendations after a detailed and lengthy report on the relevant persons in this dispute is that the child should continue to live with her father and spend time with her mother. In the present circumstances he recommends that time spent with the mother should be supervised. There is no proposal from the mother for any alternative arrangement for supervision and in those circumstances a supervised order would have to take effect as it presently does at Y Contact Centre. I am informed that such arrangements in accordance with the policy applied by that organisation necessarily limit time spent with the child to two hours.
The expert evidence the mother sweeps aside not choosing to call other evidence that might be available to her of an expert nature asserting that the reports were either wrong, out of date or described conditions from which she no longer suffers. She says of her son that he poses no danger to anyone because he has been punished and learned his lesson and would not do any such thing again.
In dealing with her own condition, the mother says by way of self-diagnosis that she does not have it any more, however the oral evidence of Mr C, the psychologist, claimed that that was not so. He gave evidence, which I accept, that the mother’s response is typical of people with this disorder. They function because they see no problems in interacting with their world and their perceptions are not at the same level as others might wish.
In addition, reports in relation to the condition of the home in which the mother lived with the children were scathing in their criticism asserting that they were not merely in an untidy condition but that they were in an unhygienic condition.
The mother in her evidence conceded that there were holes in the walls which had been caused by L who acted violently and caused damage to the walls and the furniture.
She asserts that the damage had been repaired and the floor coverings renewed. The property had otherwise been renovated and a large security fence built.
In her oral evidence she said that this had been done because the next door neighbour (now departed from the area) was odd and had killed cats owned by the mother and threw the carcasses over the fence into her garden.
The mother also referred to the fence when asked what steps she had taken or could take to protect her children from abuse.
The connection between the fence and the problems these children had suffered in sexual abuse within her household was not apparent and did not become so. It was an answer which demonstrated her lack of insight into her children’s problems of neglect and abuse and what was needed to address them.
The mother said that there was a significant change to the physical condition of the house and she wanted those criticisms reassessed.
She did not however explain what she had done or what policy she had introduced to ensure that such domestic disarray did not again occur rather concentrating on the symptoms than removal of the cause.
Her explanation in oral evidence was that the children created the mess and she did not clean it up because she was teaching the children that they had to take responsibility for their own conduct.

Additional considerations

(a)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views

This child, it appears, has expressed different views at different times but it seems common ground that presently she wishes to live with her father. She has also expressed the view that she could not go back and live with her mother and grandmother again although she continues in her expressions of love for them. The child is nearly fifteen years of age and I give considerable weight to her views as presently expressed. I also find that such views as have been expressed as to the arrangements which should be made as to her residence and times spent with the mother generally accord with what is in her best interests. The child is becoming, it seems, more mature and self-confident. It will no doubt not be many years before the child will be able to not only articulate her wishes but express her needs and have a right to expect that her wishes in relation to these matters be given even greater weight.
(b)the nature of the relationship of the child with: (i) each of the child’s parents; and (ii) other persons (including any grandparent or other relative of the child)
It was, it appears, the mother’s proposal that E have a continuing relationship with her siblings; both her brother L and her half brother T. The father for his part does not object to such a relationship continuing but says that it should do so in supervised circumstances. The father does not have a good relationship with his brother, who is T’s father, and it seems there would be some difficulty in him arranging for that connection between T and E. E also has a relationship with T’s father and it seems that that relationship also can continue. E, as earlier mentioned, has a warm relationship with her mother and grandmother. It seems that by reason of the family dynamics, whatever arrangements are made for the child to see her mother will also be probably the time when she can have face-to-face contact with her brothers and her uncle. The father does not oppose the child having contact with her mother and those others by Skype or such similar method where the exchange can be the subject of supervision.
(c)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent
The father has demonstrated a willingness and an ability, albeit restricted by time and money, to facilitate and encourage the continuing relationships between the child and the other parent and those with whom she shares an attachment. The father’s counsel said and I agree that he was to be commended for the role he took in spending a day assisting the child to travel to her monthly contact with the mother. There has been evidence that previously the mother did have a capacity and willingness to promote a continuing relationship between the children and the father but the father also asserted that at times such an attitude had been absent. The father has facilitated electronic communication with significant others in the child’s life and has indicated that he is prepared to expand that to Skype communication and web camera facilities. This will improve the quality of the communications between the child and the mother, her grandmother, siblings and significant others.
(d)the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from: (i) either of his or her parents; or (ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
The orders I propose to make will reflect in large measure the status quo. There will not be any adverse changes in my view to the child’s life because of those orders at the present time. She will have the benefit of the stability, safety and certainty of her present surroundings and care in which she is enjoying a developing self-esteem, success at school, and making new friends. She will have the benefit of the continuing love of her father and step-mother. She will have the benefit of her half siblings. She will also be able to maintain her contact with her mother and the paternal grandmother and her other siblings in circumstances which, although certainly not generally optimal, will provide her with stability and safety.
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
There is a cost in time and in money in providing the present contact between the child and her mother given the differential places of residence of the parents. However that cost has been borne and, I am told, will continue to be borne. Given that there is no significant change in the arrangements I do not think that my orders will substantially affect the child’s rights to maintain personal relations and direct contact with her mother and that contact will only be constrained by those restrictions which are necessary to secure the safety of the child.
(f)the capacity of: (i) each of the child’s parents; and (ii) any other person (including any grandparent or other relative of the child), to provide for the needs of the child, including emotional and intellectual needs
There appears no issue that the father is well capable of meeting the child’s needs including her emotional and intellectual needs. The mother has fallen short of meeting the need of these children to be free of trauma, abuse and neglect. Given her comments to officers of the Department and the reports of the experts and the fact that so far she has not recognised that she has unmet needs for treatment and therapy and appears to have little insight presently into the needs of her children, I find that her capacity to meet those needs is wanting.
She externalised the responsibility for the children rather than taking that responsibility herself for their emotional and behavioural needs. She seemed to say ‘I cannot do it and no one will provide me with the skills to do it and I am no good’. The fact is that no assistance has been provided to her and on the evidence, which I accept, none has been sought. The mother, it seems, was waiting for someone to tell her what to do.
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant
The child is of increasing maturity. The child will have the assistance of her step-mother and her mother to some extent in dealing with some of the problems which go with growing up. It is understood that she already talks with her step-mother about boyfriends and the like. The father, although coming from a somewhat dysfunctional relationship with his siblings, seems to demonstrate characteristics of self-sacrifice and recognition of his daughter’s needs which will serve her interests. The mother’s background is one of abuse and neglect. She has been depressive and has been involved in self-harm. She has a borderline personality disorder which is not presently treated. She has had auditory hallucinations. The mother’s brother is a child sexual abuser and has committed suicide. Her friend Mr AN was also a child sexual abuser who has been convicted and imprisoned. The mother is not responsible for the crimes of these men but their occurrence in her household to victims who were her children and one of whom became a perpetrator is of concern.
(h)if the child is an Aboriginal child or a Torres Strait Islander child: (i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and (ii) the likely impact any proposed parenting order under this Part will have on that right
There is no evidence that the child is of Aboriginal or Torres Strait Islander origin.
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
The mother clearly loves the child. She has failed to demonstrate that capacity to exercise the responsibilities of parenthood that would afford this court some reasonable sense of confidence that the child would be safe in her care. The mother has paid child support as required.
The father has for his part ensured that the child is appropriately schooled, housed and sustained and kept safe. He has demonstrated an understanding of the need for the child to have a continuing relationship with her mother and her siblings. Nothing in the evidence of his behaviour demonstrates at this time that he has other than an appropriate attitude to the child and to his responsibilities. He clearly loves her.
(j)any family violence involving the child or a member of the child’s family
There has been violence in the past in the mother’s household demonstrated by L but E will not be brought into unsupervised contact with that child. There also has been the violence of sexual abuse that the child has suffered and been exposed to in her mother’s household and its effects.
(k)any family violence order that applies to the child or a member of the child’s family, if: (i) the order is a final order; or (ii) the making of the order was contested by a person
There are no apprehended violence orders shown on the evidence but there are convictions and sentencing of persons for assault on this child. One such offender has committed suicide and the other has been imprisoned.
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
One cannot, in the volatile history of these parties and their children and the high conflict that has existed between not only the parents but the parties and their siblings, look to the future with other than hope. This child needs, as was pointed out by Counsel, a time of peace and security, a time to enable her to develop her skills and achieve her full potential free from the costs to her psyche of continuing conflict between her parents about her. I have made an order which I think should last until the child is of sufficient age to make a mature determination of her own. That will be some years. That is not to say that circumstances might change and the mother achieve good health and insight. In those circumstances, should they arise, it will be a basis for consideration of whether the present orders meet E’s needs. When the parties survey this battlefield, littered as it is with cadavers of costs in time, money and emotion (and one would reasonably expect emotional trauma to this child who has been interviewed and assessed and examined, fostered and moved) they will not lightly embark on the like again but rather seek to come to a resolution of any adjustment by restrained polite and intelligent discussion, if necessary with the help of a mediator.
(m) any other fact or circumstance that the court thinks is relevant
In his evidence Mr C said that he did not see no possibility of unsupervised contact with the mother at some time in the future. What he said would be necessary is for the mother to demonstrate some insight into the risk factors in offending and to demonstrate and maintain some positive psychological health. He indicated therapy that she could undergo and where she might get assistance. I urge the mother to take to heart this advice. The mother needs to travel some way and expend some effort and time in achieving psychological health. A successful journey along this path and the developing of some insight may give rise to some measure of hope for the future. I do not however see the process as being a short term one.

Section 60CC(4) & (4A)

I have already touched on a number of matters which fall for consideration under this heading and I will not repeat those matters.

Balancing of all considerations under Section 60CC and the defined issues

Balancing the matters set out in section 60CC and the evidence recited in these reasons I conclude that the orders I propose will operate to foster the best interests of this child for the reasons specified above.

Section 61DA

This section recites a presumption which is required to be applied by the Court unless one of the excluding factors applies. The section requires the Court to presume that it is in the child’s best interests for their parents to have equal shared parental responsibility for the child.
The presumption does not apply where there has been family violence. In this case there has been family violence.
Notwithstanding that there may have been family violence it would still be open to the Court to make an order for equal shared parental responsibility if it was determined to be in the best interests of the child.
The section further provides in sub section (4) that the presumption may be rebutted if it is determined to be not in the child’s best interests.
In this case there is reason as outlined above for the court to determine that it is not in the best interests of this child that the parties have shared parental responsibility and neither party seeks such an order.

Section 65DAA

This section requires me to consider making an order for equal shared time for the child with each parent where it is proposed to make an order for equal shared parental responsibility.
I do not intend to make an order for shared parental responsibility.
The Orders to be made are in the court’s view those which best serve the interests of this child and will afford her the opportunity of further growing in a safe environment and being nurtured by her father and step-mother whilst still maintaining, in a safe environment, contact with her mother and her grandmother her siblings and significant others. They will at this time provide the best opportunity for E to achieve her full potential.
I therefore propose to make the orders in relation to parenting as set forth above.

I certify that the preceding one-hundred and thirteen (113) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Fowler.

Associate:

Date: 14 July 2010

[2010] FamCA 600

14 July 2010

Key Legal Topics

Areas of Law

Family Law