Bosch and Rickard
[2011] FMCAfam 726
•20 July 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BOSCH & RICKARD | [2011] FMCAfam 726 |
| FAMILY LAW – Undefended hearing in respect of time by father with three children – where two children not the biological children of father – where father failed to attend the hearing and had not filed any trial affidavits – extensive history of violence by the father against the mother and other persons in front of the children – incidents of cruelty to animals – where the father was devastated that he had lost access to firearms and could no longer hunt – where father had not physically abused the children – whether such history coupled with the father’s aggressive and angry behaviour and refusal to obtain any assistance or undergo psychiatric testing was enough to amount to unacceptable risk – where the concern is that the violence will escalate – where father has been charged with assaulting police after waiting outside the youngest child’s school and acting in a menacing behaviour towards the mother – where the children are genuinely afraid of the father having lived with a siege mentality – where the children are very strong and consistent with their views that they do not want to see the father – finding made that unacceptable risk existed – mother seeking change of name for youngest child who has neither the surname of the mother or the father – change of name allowed – where mother seeking order for sole parental responsibility – order for mother to have sole parental responsibility. |
| Family Law Act 1975, ss.4, 60B, 60CC, 60CA, 60CG, 61DA, 65AA, 65D, 68B |
| Briginshaw v Briginshaw (1938) 60 CLR 336 Chapman & Palmer (1978) FLC 90-510 Goode & Goode (2006) FamCA 1346 Johnson & Page [2007] FamCA 1235 |
| Applicant: | MR BOSCH |
| Respondent: | MS RICKARD |
| File Number: | DNC 50 of 2010 |
| Judgment of: | L. Turner FM |
| Hearing date: | 21 June 2011 |
| Date of Last Submission: | 21 June 2011 |
| Delivered at: | Darwin |
| Delivered on: | 20 July 2011 |
REPRESENTATION
| The Applicant: | No Appearance |
| Counsel for the Respondent: | Ms Holtham |
| Solicitors for the Respondent: | Holtham & Associates |
| Counsel for the Independent Children’s Lawyer: | Ms Orwin |
| Solicitor for the Independent Children’s Lawyer: | Margaret Orwin |
ORDERS
All previous orders be discharged.
That the children [X] born [in] 1995, [Y] born [in] 1998 and [Z] born [in] 2004 live with the mother.
That the mother have sole parental responsibility for the children.
That the father shall not spend time with the children.
That the father shall not communicate with the children.
That the father be restrained and an injunction be granted restraining the father from:-
(a)Contacting or attempting to contact the mother;
(b)Contacting or attempting to contact the children;
(c)Communicating or attempting to communicate with the mother;
(d)Communicating or attempting to communicate with the children;
(e)Not coming within 500 metres of the mother’s residence, the mother’s place of work, or any schools attended to by the children.
That from the date hereof the child [Z] [Chalmers] born [in] 2004 shall be known as [Z] Rickard and that the mother shall do all such things and sign all such documents as are necessary to change the child’s name with Births, Deaths and Marriages Registry within 7 days from the date hereof, and that this order will act an authority for such changes to be made with the provision of the mother’s signature only. If the father’s signature is required then a Registrar of the Family Court of Australia or Registrar of the Federal Magistrates Court of Australia is appointed pursuant to s.106A of the Family Law Act 1975 to execute any required documents on behalf of the father to give force and effect to this order.
That pursuant to section 26 Births Deaths and Marriages Registration Act (NT), the Registrar register the name of the child in accordance with Order (7).
That any airport watch alert in place in relation to the children [X] born [in] 1995, [Y] born [in] 1998 and [Z] born [in] 2004 be discharged.
That the mother be permitted to travel outside the Commonwealth of Australia with the children without first obtaining the consent of the father.
That the Independent Children’s Lawyer be discharged.
IT IS NOTED that publication of this judgment under the pseudonym Bosch & Rickard is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT DARWIN |
DNC 50 of 2010
| MR BOSCH |
Applicant
And
| MS RICKARD |
Respondent
REASONS FOR JUDGMENT
Introduction
I have before me for determination competing applications in respect to the ongoing arrangements for three children [X] born [in] 1995, [Y] born [in] 1998 and [Z] born [in] 2004.
The father is not the biological father of the two older children [X] and [Y], but is the biological father of the youngest child [Z].
The matter was listed for a two day hearing on 21 June 2011, but as the father failed to attend the hearing, the matter proceeded by way of an undefended hearing.
Brief Background
The father is aged 37 years and is employed as a [omitted].
The mother is aged 36 and is employed fulltime by [omitted].
[In] 1995 the mother gave birth to [X], now aged nearly 16 years. The father is Mr Rickard.
[In] 1998 the mother gave birth to [Y], now aged 13 years. The father is Mr Rickard.
In 2001 the mother and father commenced cohabitation.
At the time of commencement of the relationship the father had a son, now aged 14, from which the father is estranged.
In mid 2003 the parties separated for a brief period of time.
[In] 2004 the child of the relationship [Z] was born. [Z] is now aged 6 and a half years.
In early 2008 the parties separated for a brief period of time.
In January 2009 the parties separated on a final basis.
In 2009 the father spent limited time with [Z].
Sometime in 2009 or 2010 the father re partnered although no further details are available.
In January 2010 the mother commenced a relationship with Mr S.
Mr S has three daughters from a previous relationship now aged 15 and 17 and 21 years.
On 29 January 2010 the mother obtained an interim domestic violence order in the name of the mother and the three children.
In January 2010 the father’s time with [Z] ceased.
In August 2010 the mother commenced living with Mr S.
In August 2010 after a defended hearing in the local magistrates court the mother obtained a domestic violence order.
History of court proceedings
On 29 January 2010 the father commenced proceedings seeking final orders for unsupervised time with the three children with changeover to occur at Catholic Care. Further the father was seeking an interim order that the children could not be removed from Northern Territory together with an airport watch order. The father was self represented at the time of filing.
On 8 February 2010 the father’s legal representative filed a Notice of Address for Service.
On 9 February 2010 FM Terry made an airport watch order.
On 1 April 2010 the mother filed a response seeking final orders that the mother have sole parental responsibility for the youngest child [Z], that the father not spend any time with the two eldest children, and that orders for time with [Z] be defined at a later time. In the interim the mother was seeking orders for sole parental responsibility, that the father not spend time with the two eldest children, that the father spend no time with [Z], or in the alternative supervised time at Catholic Care of two hours a fortnight, as well as orders for passports, permissions to travel to England, that the father be psychiatrically assessed and for the appointment of an independent children’s lawyer.
On 8 April 2010 FM Terry after an interim hearing made orders that the children live with the mother, that the mother have sole parental responsibility for the children, that the mother be permitted to travel to England, that the father spend no time with the children, and that an independent children’s lawyer be appointed.
On 6 October 2010 a family report prepared by Mr R was released.
On 12 October 2010 FM Turner made an order for the family report to be released to the psychiatrist preparing the report on the father.
On 8 February 2011 the matter was listed for final hearing on 5 and 6 May 2011.
On 5 May 2011 the hearing did not proceed as the father, now unrepresented, had not participated in the obtaining of a psychiatric report and had not filed any affidavits of evidence in chief.
The matter was relisted for a two day hearing on 21 and 22 June 2011 and fresh directions were made for the filing of material.
On 21 June 2011 the father failed to attend at the hearing.
No material had been filed by the father and a psychiatric assessment of the father had not been obtained.
Orders sought
The mother is seeking the following orders by way of final order:-
a)That the children live with the mother;
b)That the mother have sole parental responsibility for the children;
c)That the father not spend time with the children;
d)That the father be restrained from contacting or otherwise communicating with the mother and the children;
e)That the father be restrained from coming within 500 metres of the mother’s residence, the mother’s place of work, and the children’s schools;
f)That the mother be permitted to change the last name of the child [Z] from Chalmers to Rickard;
g)That the airport watch be lifted;
h)That the mother be permitted to travel overseas without the father’s permission.
The father, according to the initiating application, is seeking the following by way of final orders:-
a)Changeover to occur at Catholic Care;
b)To spend unsupervised time with the children every Friday, Saturday and Sunday.
The parties’ evidence
The father is no longer legally represented in these proceedings.
Although the father has failed to attend the hearing and has not filed any affidavits of evidence in chief, I have for the purposes of this judgment read and considered the following documents:-
a)Initiating application filed 29 January 2010;
b)Affidavit of the father filed 29 January 2010;
c)Affidavit of the father filed 3 February 2010;
d)Affidavit of the father filed 1 July 2010.
The mother is legally represented in these proceedings.
In respect to the mother I have read and considered the following documents:-
a)Response filed 1 April 2010;
b)Affidavit of the mother filed 3 May 2011;
c)Affidavit of Mr S, the mother’s partner filed 3 May 2011;
d)Affidavit of Mr Rickard, the biological father of the two older children, [X] and [Y] filed 3 May 2011;
e)Outline of case filed 5 May 2011.
In respect to the independent children’s lawyer, no material has been filed, with the independent children’s lawyer supporting the orders sought by the mother.
I have also read and considered:-
a)
The judgment delivered by FM Terry for the interim hearing on
8 April 2010;
b)The family report released by Mr R on 6 October 2010.
Oral evidence was not given by the mother and cross-examination was not required by the independent children’s lawyer.
In considering the matter, I have had regard to all of the material filed, all documents tendered and to the submissions made by the parties.
Findings of fact are made on the balance of probabilities, having regard to the evidence and my observations of the parties and witnesses.
In what follows, statements of fact constitute findings of fact.
The Law
Children’s issues are contained in Part VII of the Family Law Act 1975 (Cth) (“the Act”).
The power of the Court to make a parenting order is provided for in section 65D.
Pursuant to section 65AA, in deciding whether to make a particular parenting order, the Court must have regard to the best interests of the child as a paramount consideration.
This is reiterated in section 60CA.
In determining what is in the best interests of the child, I must, firstly, consider the objects of Part VII and principles underlying the objects are set out in section 60B.
In short, the objects are that the child have the benefit of a meaningful relationship with both parents, provided it is consistent with the child’s best interests, that the child is protected from harm, abuse, neglect or family violence, that the child receive adequate and proper parenting to help the child achieve full potential, and ensure that the parents fulfil their duties and meet responsibilities in the care, welfare and development of the child.
As to the principles underlying the objects, the child has the right to know and be cared for by both parents, to spend time with the parent with whom the child is not living and for parents to jointly share duties and responsibilities of parenthood.
In the case of Goode & Goode (2006) FamCA 1346, the Full Court noted that section 60B provides the context in which the factors in section 60CC are “examined, weighed and applied in the individual case” in determining what is in the best interests of the child.
Section 60CC refers to primary and additional factors.
The primary considerations are:-
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The additional considerations are:-
(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;
(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);
(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;
(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;
(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;
(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;
(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;
(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;
(i) the attitude to the child, and to the responsibilities of parenthood demonstrated by each of the child’s parents;
(j) any family violence involving the child or a member of the child’s family;
(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;
(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;
(m) any other fact or circumstance that the court thinks is relevant.
Further consideration must be given to section 60CC(4) which provides:-
Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents:
(a) has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child; and
(b) has facilitated, or failed to facilitate, the other parent:
(i) participating in making decisions about major long-term issues in relation to the child; and
(ii) spending time with the child; and
(iii) communicating with the child; and
(c) has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.
Application of the law
Primary Considerations
Because of the various concerns raised as to the children, and in particular [Z] being at risk of the father, I am going to take the unusual step of dealing with the second primary consideration first.
Need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
The mother informed the report writer at [14] of the family report:-
“The respondent mother seeks orders that the father have no contact with [Z]. She argues the father is a violent, unstable individual who has perpetrated violence against her in the presence of the children over the 8-9 years of their relationship. She describes the children as not feeling safe or secure in the presence of the father and described them as extremely fearful of him.”
There was at the time of the hearing a final domestic violence order in existence protecting the mother and the children from the father and allowing no contact by the father with the aggrieved parties.
A local court hearing as to the extension of the domestic violence order is to occur within the next few weeks and in the meantime the final domestic violence order remains in force.
The court is required if it is consistent with the best interests of the children to ensure that any order it makes takes into account the domestic violence order as set out in section 60CG:-
(1) In considering what order to make, the court must, to the extent that it is possible to do so consistently with the child's best interests being the paramount consideration, ensure that the order:
(a) is consistent with any family violence order; and
(b) does not expose a person to an unacceptable risk of family violence.
(2) For the purposes of paragraph (1)(b), the court may include in the order any safeguards that it considers necessary for the safety of those affected by the order.
The mother submits that the children should not spend any time with the father, as he presents as an unacceptable risk to the children due to his unpredictable, unaddressed and unacknowledged violent behaviour.
As to what amounts to unacceptable risk was the subject of much discussion in the Full Court decision of Johnson & Page [2007] FamCA 1235 at [62] to [71] :-
“62. The principles to be applied by a trial Judge in determining whether a child should spend time with a parent when the issue of sexual or other serious abuse is alleged to have been perpetrated on the child and/or it is asserted there is an unacceptable risk of harm to the child if the child spends time with a parent are those set out by the High Court in M and M.
63. Given the nature of the challenge to his Honour’s reasons it is appropriate we set out the relevant passages from M and M at 76-77
In considering an allegation of sexual abuse, the Court should not make a positive finding that the allegation is true unless the Court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v. Briginshaw (1938) 60 C.L.R. 336 at p. 362. There Dixon J. said:
“The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the
consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences.”His Honour's remarks have a direct application to an allegation that a parent has sexually abused a child, an allegation which is often easy to make, but difficult to refute. It does not follow that if an allegation of sexual abuse has not been made out, according to the civil onus as stated in Briginshaw, that conclusion determines the wider issue which confronts the Court when it is called upon to decide what is in the best interests of the child.
No doubt there will be some cases in which the Court is able to come to a positive finding that the allegation is well-founded. In all but the most extraordinary cases, that finding will have a decisive impact on the order to be made respecting custody and access. There will be cases also in which the Court has no hesitation in rejecting the allegation as groundless. Again, in the nature of things there will be very many cases, such as the present case, in which the Court cannot confidently make a finding that sexual abuse has taken place. And there are strong practical family reasons why the Court should refrain from making a positive finding that sexual abuse has actually taken place unless it is impelled by the particular circumstances of the case to do so.
In resolving the wider issue the Court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assessing the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child's welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access. In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access. Even in such a case, however, there may be a risk of disturbance to a child who is compulsorily brought into contact with a parent who has sexually abused her or whom the child believes to have sexually abused her. But that is not the issue in this case.
Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. The degree of risk has been described as a “risk of serious harm” (A. v. A. (1976) V.R. 298 at p. 300), “an element of risk” or “an appreciable risk” (M and M (1987) FLC 91-830 at pp. 76,240-76,242; (1987) 11 Fam L.R. 765 at pp. 770 and 771 respectively), “a real possibility” (B and B [Access] (1986) FLC 91-758 at p. 75,545), a “real risk” (Leveque v. Leveque (1983) 54 B.C.L.R. 164 at p. 167), and an “unacceptable risk” (In re G. (a minor) (1987) 1 W.L.R. 1461 at p. 1469). This imposing array indicates that the courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child's paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.
In the present case Gun J. was not satisfied that the husband had not
sexually abused the child. We take that to mean that his Honour was not so satisfied according to the civil onus. On this footing his Honour was unable to exclude the possibility that the husband had so abused the child. His Honour obviously concluded that there existed an unacceptable risk that the child would be exposed to sexual abuse if the husband were awarded custody or access.
64. We think it important to note that before the trial Judge counsel then appearing for the mother in his submissions rejected the proposition that it was necessary for the trial Judge to make a finding that the father had sexually abused the child, but rather he should make a finding that there was an unacceptable risk he could do so in the future. (Transcript 4 August 2006, p 412).
65. In W and W (Abuse allegations: unacceptable risk) (2005) FLC 93-235_the Full Court (Warnick, May and Boland JJ) discussed the issue of “the unacceptable risk test” and in so doing reviewed a number of cases determined after M and M. Their Honours at paragraph 111 noted:
In summary, the law is well settled as to the standard of proof required to make a positive finding of sexual abuse, and that such a finding should not be made unless a trial Judge is satisfied to the highest standard, on the balance of probabilities abuse has occurred. We accept, as a matter of practice, a trial Judge will almost inevitably be required in a case where sexual abuse allegations are raised to consider whether abuse has been proven on the balance of probabilities as well as considering whether or not an unacceptable risk of abuse exists. The High Court in M and M recognised the difficulty in defining with any degree of precision what constitutes an “unacceptable risk” and the cases determined after that decision testify to the difficulty. However, the questions posed by Fogarty J in N and S, and referred to by us in paragraph 105, do provide a structure or framework which may assist a trial Judge to assess future risks to a child.
66. Two recent decisions of the Full Court have again examined the question of unacceptable risk. In Napier v Hepburn (2006) FLC 93-303; (2006) 36 Fam LR 395 the majority (Bryant CJ and Kay J with whom Warnick J agreed in upholding the appeal), by implication, approved passages from Fogarty J's discussion in N and S (1996) FLC 92-655 at 82,713 which are as follows:
One of the difficulties which arises in the application of these principles is in seeking to preserve an independent content to the notion of ‘unacceptable risk’. Though the purpose behind the notion is to assist a court in determining what is in the child’s best interests, the importance of asking the question separately lies in its specific guidance to courts faced with the difficulties which cases of sexual abuse raise. There is a danger that it will be treated just as an expression which must be ritually used in judgments which involve questions of sexual abuse, but given no substantive meaning or weight. It is easy to say that there is or is not an unacceptable risk of sexual abuse, and so to be seen to be applying the correct legal test. Those words seem sometimes to be used without an appropriate degree of consideration.
Because it may be said that in every case there is, at least in theory, a risk of harm, it is inevitable that courts will have to make some effort to quantify the relevant risk. In S and S, [1993] NZFLR 657] Thomas J addressed the difficulty involved here. At 670 his Honour said:
“Qualifying words such as ‘unacceptable’, ‘real’, ‘serious’ or ‘appreciable’ are merely methods of expressing the fact that the risk has a foundation in the evidence which is incompatible with the welfare of the child.”
In the Court of Appeal, [[1994] NZFLR 26] Gallen J, Cooke P and Hardie Boys J agreeing, said at 33-4:
“It is in the assessment of the risk that the difficulties arise. The
cases all indicate that it is not ‘any degree of risk’ which is
sufficient and various adjectives have been used to indicate the
degree of risk which can justify appropriate action on the part of the courts. The four most commonly used adjectives are ‘unacceptable, real, serious or appreciable’. None are particularly helpful and discussion of them tends to degenerate into a matter of semantics. The judge in this case indicated that they were merely methods of expressing the fact that the risk has a foundation in the evidence which is incompatible with the welfare of the child. While at first sight that is a helpful formulation, the same difficulties arise in determining what kind of foundation is necessary and what kind of risk can properly be said to be incompatible with the welfare of the child.
In the end I doubt whether a court can go beyond saying that there must be actual evidence which at the very least gives rise to the conclusion that behaviour may have occurred or may occur which has had or could have deleterious effects on the child concerned. It must be more than mere conjecture and need not go as far as the proof which would justify a conviction. From that it will be seen that there are two emphases to be kept in mind. The first is the foundation from which the conclusion may be drawn and the second and by far the more important, is the effect which can rationally be predicted on the child. In considering the whole matter as the judge points out, it is necessary to bear in mind the serious consequences which can occur to a child if he or she is subjected to behaviour which is inappropriate in this area.
Thus, the essential importance of the unacceptable risk question as I see it is in its direction to judges to give real and substantial
consideration to the facts of the case, and to decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm to the child. Thus, the value of the expression is not in a magical provision of an appropriate standard, but in its direction to judges to consider deeply where the facts of the particular case fall, and to explain adequately their findings in this regard.
In asking whether the facts of the case do establish an unacceptable risk the court will often be required to ask such questions as: What is the nature of the events alleged to have taken place? Who has made the allegations? To whom have the allegations been made? What level of detail do they involve? Over what period of time have the allegations been made? Over what period of time are the events alleged to have occurred? What are the effects exhibited by the child? What is the basis of the allegations? Are the allegations reasonably based? Are the allegations genuinely believed by the person making them? What expert evidence has been provided? Are there satisfactory explanations of the allegations apart from sexual abuse? What are the likely future effects on the child?
This is not a catalogue of the correct questions, but a reminder that it is questions such as these which are required to be considered in deciding whether an unacceptable risk may be shown. The weight to be attached to the various answers to the relevant questions will inevitably vary from case to case. But it is essential that questions like these be asked.
In answering the unacceptable risk question the court must undertake a qualitative analysis. For instance, that determination cannot appropriately be made through a process which counts the number of considerations which favour access, and those which militate against access, and then asks on which side the balance falls. Rather, the essential weight must be attached to the magnitude of the harm to which the risk relates. The notion of ‘unacceptable risk’ must be assessed in light of the grave consequences of sexual abuse to a child’s development, as well as the effects of future contact with the party. As Thomas J said at 670:
“In assessing whether the risk is unacceptable, the court is not
merely evaluating the risk that sexual abuse between the parent and child will occur. Inherent in the risk to the child are the potentially severe and destructive consequences of sexual abuse should it in fact occur. These potentially ruinous consequences do not need repeating. The probability of lasting emotional and psychological damage to the child, generally becoming acute during adolescence, is well-documented.”
Against this background, the resolution of any allegation itself is what the High Court at 12 Fam LR 610; [1988] FLC 77,080 termed ‘subservient and ancillary to the court’s determination of what is in the best interests of the child’. This recognises that sexual abuse is not a matter which lends itself to convenient characterisation in traditional evidentiary terms, such as may be appropriate for more public and easily detectable offences. Though ‘the court should not make a positive finding that the allegation is true unless the court is so satisfied according to the civil standard of proof’, to require such a finding as a prerequisite to satisfaction of the unacceptable risk test would make no allowance for the reality and nature of sexual abuse or the essential task of the court — the promotion of the welfare of the child. The High Court has emphatically rejected such an approach.
In M v Y, [[1994] NZFLR 1] Hardie Boys J (Cooke P and Gallen J agreeing), warned against the danger of allowing a resolution of the allegations to overwhelm the issue at 8:
“It is all too easy — and it is understandable — where an allegation of gross misconduct towards the child is levelled at a parent, for the focus to shift from the welfare of the child to the truth of the allegation. Its truth will doubtless be very important in an assessment of the child’s welfare, but it will not always be crucial. But for the accused parent, most particularly if the accusation is false, its refutation may seem essential; while the accuser, firmly believing it, may see it as essential to sheet it home. Along the way, it is easy to lose sight of the child, innocently caught up in the midst of the strife.”
If the court is able to make a balance of probabilities finding that sexual abuse has taken place, that finding will have a powerful, often decisive, bearing on any contemplated orders. But an inability to be so satisfied will not have such an effect. The court must still ask the ‘unacceptable risk’ question. An example of this is Thomas J’s approach at 681-2:
“I do not consider that it has been established on the balance of
probabilities having regard to the seriousness of the allegations that Mr S sexually abused his son. But I am not prepared, Temm J’s decision in Y v M notwithstanding, to make a finding, applying the same standard of proof, that Mr S did not sexually abuse his son. Whether one likes it or not, the answer to that question remains uncertain, and it is that uncertainty which must be taken into account in determining what is in L’s best interests.”
This is not to suggest that there is a two-step approach which must be followed, but a reminder that the failure to be satisfied of the occurrence of sexual abuse on the balance of probabilities does not of itself answer the question whether an unacceptable risk can be said to exist. There is no requirement to ask whether the evidence satisfies a balance of probabilities finding in favour of abuse, though that may nevertheless be useful in some cases. There is, however, a requirement to ask whether the evidence establishes an unacceptable risk. [Full Court’s emphasis]
67. Also potentially relevant to the issues raised in this appeal are Warnick J's comments in his separate judgment in Napier v Hepburn, which were adopted with approval by the Full Court in Potter v Potter [2007] FamCA 350. His Honour said:
“I also wish to add some comment on what I perceive as a further goal of fulsome discussion by a trial judge of the component aspects that may, in any given case, lead to a conclusion of “unacceptable risk” of harm to a child. That goal is to provide a platform, for any future consideration of the family’s circumstances. Once a finding of unacceptable risk is made, imperfect though the process that leads to that result may be, the finding can come down between parent and child like an iron gate, that no subsequent efforts can raise. At least a close examination of the steps leading to a finding of “unacceptable risk” can illuminate paths by which a family (or a court making decisions for a family) might subsequently
explore options for change. (paragraph 114)”
68. In his recent paper entitled ‘Unacceptable risk – A return to basics’ the Hon. John Fogarty A.M. set out his summary of the principles emerging from M and M as follows:
1. The decisive issue is and always remains the best interests of that
child.
All other issues are subservient.2. The nature of the risk is best expressed by the term ‘unacceptable
risk’. It is an evaluation of the nature and degree of the risk and
whether, with or without safeguards, it is acceptable.
3. Where past abuse of a child is alleged it is usually neither necessary. nor desirable to reach a definitive conclusion on that issue. Where, however, that is done the Briginshaw civil standard of proof applies.
4. The circumstance, if it be so, that the allegation of past abuse is not proved in accordance with Briginshaw, does not impede reliance upon those circumstances in determining whether there is an unacceptable risk.
5. The concentration in these cases should normally be upon the
question whether there is an unacceptable risk to the child.
6. The onus of proof in reaching that conclusion is the ordinary civil
standard.
7. But the components which go to make up that conclusion need not each be established on the balance of probabilities. The court may reach a conclusion of unacceptable risk from the accumulation of factors, none or some only of which, are proved to that standard.
and thereafter expanded some points contained in the summary.
69. Relevantly for the issues raised in this appeal, he noted that rather than referring to “the Briginshaw test” it was now more appropriate to refer to s 140 of the Evidence Act 1995 (Cth) (“the Evidence Act”). Section 140 provides as follows:
Section 140
(1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence; and
(b) the nature of the subject-matter of the proceeding; and
(c) the gravity of the matters alleged.
We think it useful at this point of our discussion to refer to the decision of the High Court in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 where Mason CJ, Brennan, Deane and Gaudron JJ said at 170-171 in discussing standard of proof
“The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary “where so serious a matter as fraud is to be found”. Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct. As Dixon J commented in Briginshaw v Briginshaw:
“The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the
consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved …”There are, however, circumstances in which generalisations about the need for clear and cogent evidence to prove matters of the gravity of fraud or crime are, even when understood as not directed to the standard of proof, likely to be unhelpful and even misleading. [footnotes omitted].
Although determined prior to the introduction of the Evidence Act the
principles referred to by their Honours have been applied in decisions after the introduction of the Evidence Act (see Palmer v Dolman [2005] NSWCA 361. See also Odgers, S, Uniform Evidence Law, 7th ed, Lawbook Co., Sydney, 2006, at 673-674.)
71. We generally agree with Mr. Fogarty’s seven point summary (see paragraph 68). We assume point seven of that summary is directed to the requisite standard of proof. We think a Judge may be cautious in coming to a finding of unacceptable risk if none, rather than some only, of the accumulation of factors considered, satisfy the standard of proof (but see Malec v J C Hutton Proprietary Limited (1990) 169 CLR 638).’
This is an unusual case as it is not alleged by the mother that the children have been physically abused by the father.
But the absence of physical abuse should not, I find, preclude an analysis of the violence perpetrated in the past by the father, in assisting in determining the possibility on the balance of probabilities of the father presenting himself an unacceptable risk to the children in the future.
I will firstly set out a chronology of events pertaining to the father’s history of violence:-
a)In July 1999 a complaint was made to the police that the father had forced entry into a former partners’ home and sexually assaulted her;
b)In May 2000 the complaint was withdrawn but a domestic violence order was made against the father for 12 months;
c)In April 2001 a complaint was made to the police by a friend of the former partner that the father was trying to obtain the former partner’s address;
d)In June 2003 a complaint was made to the police by the mother that the father had assaulted her;
e)In June 2006 a complaint was made to the police by the mother that the father had at the Darwin show punched her in the mouth whilst the father was carrying [Z]. The mother describes the event at [11] in her affidavit:-
“In July 2006, we were at the Darwin Show. [Z] was about 18 months old. Mr Bosch told me he was taking [Z] and was going home. I said he couldn’t because he was drunk and I was not letting him drive with [Z] in the car. Mr Bosch then pulled my hair, grabbed me by the wrist and then punched me in the mouth. Mr Bosch was holding [Z] at the time. The police were called and they obtained a domestic violence order on my behalf. Mr Bosch subsequently agreed to an order for 12 months not to assault or threaten me.”
f)In August 2007 a complaint was made to the police by the mother that the father had assaulted her;
g)In December 2007 a complaint was made to the police by the father’s neighbour that the father had run over their letterbox;
h)Between 2006 and 2008 the father assaulted the mother in front of the children which is captured at [13] of the mother’s affidavit:-
“On another occasion Mr Bosch was choking me and the children were present. They were yelling at him to get away from me. Eventually he did leave me alone, but then immediately kicked and smashed the bottom half of a louvered door, completely breaking it in half”;
i)In February 2008 the child [Y] telephoned police stating that the mother and the father were fighting. Police went to the household and were informed by the mother that she had asked [Y] to call the police, but that the father had now left the premises;
j)In November 2008 the father, after being informed by the mother that she was leaving him, threatened to kill himself and overdosed on insulin and drank a bottle of rum which caused him to be hospitalised;
k)In January 2009 a complaint was made to the police by the mother that the father was trying to gain entry to her home by unscrewing the air conditioner which is deposed to by the mother at [16] of her affidavit:-
“…Not long after separation, Mr Bosch came to my home and tried to unscrew the air conditioner so that he could get into the house. I told [Mr Bosch] I was calling the police and he then picked up our family cat and took it with him.”
l)In mid 2009 a camping trip planned by the parties with the children as part of a scout trip was cut short when the father threatened the mother with a knife;
m)On 30 October 2009 a complaint was made to the police by the mother that the father had forced his way into her home and had taken her home phone and her mobile phone;
n)In late 2009 the father broke into the mother’s house and removed several items including the mother’s and the children’s passports;
o)In the mid January 2010 the father wrote a letter to the mother, a copy of which is attached as Annexure “B” to her affidavit and reads in part:-
“Have [Z] ready for me this weekend, no conditions! Otherwise we will be going before a magistrate for all too see how his man hating lesbian mother is denying contact with the father.”
p)On 14 January 2010 upon the father learning of the mother’s new relationship with Mr S the father threatened and assaulted the mother in the presence of [Z] and [X]. The mother deposes at [23],[24],[25] and [26] of her affidavit:-
“On Thursday 14 January 2010, I was at home with [X] and [Z] and was about to go to [omitted] to get my car looked at. When I went outside, I saw Mr Bosch standing on the patio out the front of my house. I told him that I couldn’t talk and that I had to go. Whilst saying this, I walked to my car. Mr Bosch leant up against my car door and on the driver’s side and said “You’re not going to dismiss me like this. We are going to talk now” or words to that effect. I told Mr Bosch that I couldn’t talk and that I had to go. Mr Bosch then started swearing at me, calling me a “fucken whore” and telling me that I had to talk to him. Mr Bosch then grabbed me by the hair and pushed me up against the neighbour’s fence. I yelled at [X] to grab my keys and to take [Z] inside. Mr Bosch kept saying he was going to get my new guy and cut his dick off. He kept saying I had soiled myself and I was a fucking whore. Mr Bosch also said to me words similar to, “It’s taking all my restraint not to rape you and I’ve been restraining myself the whole year.” I kept yelling at [X] to get in to the house. I could see her fumbling with the keys to open the door. At one stage she came over and told Mr Bosch to leave me alone. I told her to get [Z] inside and call the police. Mr Bosch finally let me go and then stood there glaring at me. I could see [X] through the screen door with the phone. I went inside and took the phone from [X]. She was talking to the police at Katherine for some reason. The police asked if I wanted help and I said that I just wanted to get out of my house and away. I could see Mr Bosch outside near my car, waving his fists around and motioning that he was going to smash my window. I yelled at him a couple of times not to. He then left… ”
q)On 18 January 2010 the father threatened to kill the mother and rape her. The father admitted to being at the house but denies that he threatened her. The mother deposes to the incident at [32], [33] and [34] of her affidavit:-
“ …He said “You’d better call your family because you won’t see them again” or words similar. Before [Mr Bosch] left, he kicked my car and yelled that he was going to rape and kill me. I went to the police station on 18 January 2010 and made a statement to them. They obtained a domestic violence order on my behalf.”
r)On 18 January 2010 the mother obtained an urgent domestic violence order against the father;
s)On 9 February 2010 the father followed the mother and Mr S around the Federal Magistrates Court foyer taking photographs of them on his mobile phone;
t)
On 9 February 2010 the father approached Mr S in the street.
Mr S deposes at [3] and [4] as to what transpired:-
“I had to leave at lunchtime to return to work. Later that afternoon, I was in [address omitted] when Mr Bosch came up to me. He said to me “How did you feel when you found out your wife had gone off with someone else?”. He then yelled at me several things including “You’re rooting my wife.” I said to him “She’s not your wife and you are not going out with her.” I kept trying to walk around him but he kept moving in my path. I was dressed in my work uniform and did not want to make a fuss. I said to him, “You know where I live if you want to talk.” He then walked away saying something I did not hear properly.”
u)On 9 February 2010 a complaint was made by Mr S to the police as the father attended at Mr S’s house, threatened and assaulted Mr S and hurt Mr S’s dog. Mr S deposes as to the incident at [5] [6] [7] and [8] of his affidavit:-
“….while I was returning home from work, I received a telephone call from my daughter, [name omitted]. She said to me “A man is here waiting to talk to you. He’s taken your mail and we’re scared” or words to that effect…..When I arrived home Mr Bosch was outside my fence. I got out of my car and went to open the gate. He followed me. He started yelling at me, saying such things as “You’re fucking my wife”. My dog came to me and Mr Bosch said, “I’m so angry I am going to strangle your dog’” and as he said this, he bent down and placed his hands around my dog’s neck in a strangling motion. The dog gave a yelp and Mr Bosch then let go. I told Mr Bosch to leave. He then pushed me up against the gate and I told him again to leave. He went outside the gate but continued yelling at me, swearing and going on and on about “my rooting his wife”. My other daughter, [J] then ran outside to me saying “get away from my father. Why cant you leave [Ms Rickard] and my dad alone.” When she did this,
Mr Bosch left. My children were very frightened and I reported the incident to the police. I was told that Mr Bosch would be served with a trespass notice.”
v)On 10 February 2010 the father again attended at Mr S’s house as deposed to by Mr S at [9]:-
“…I received a phone call from Mr Bosch. He said to me, “Come outside. We need to talk”. I then went outside and he was outside the gate. I also walked outside the gate because I didn’t want him on my property. He then started yelling at me, “You’re rooting my wife.” I replied, “She’s not your wife.” He then said, “She’s my de facto wife.” This continued for a little time and then he pushed me against the gate. After this my daughter [J] shouted out, “I’ve called the police.” Mr Bosch then walked to his car and drove off.”
w)In mid February Mr S found the lock on his front gate had been glued and it couldn’t be opened.
x)In March 2010 the father attended the mother’s residence and stabbed her car tyres, pulled off the bathroom screen window and security door, broke the lock on the screen door and placed glue in the dead bolt locks. The stabbing of the tyres was witnessed by Mr S and the children. The father admitted at the interim hearing to poking the tyres on one occasion with a pocket knife. The mother sets out the incident at [37] and [38] of her affidavit:-
“During mid to late March 2010, Mr Bosch kept attending my house without my permission. My children saw him one day in our shed. When I returned home, my mother’s car which was parked near the shed had its tyres slashed and [Y]’s peewee motorbike had been stolen. A few days later, I was at home when Mr Bosch attended. I saw him stabbing my car tyres. Around the same time, I found the 2 dead bolt locks on the front and back of my house had super glue in them. I also later saw that the cyclone grated steel screen on my bathroom window was pulled off, although previously it had been bolted into the bricks. The security screen door was also pulled out and the automatic door closing mechanism was broken.”
y)On 8 April 2010 the father’s intimidating behaviour in court resulted in the mother being placed in a secure room;
z)In June 2010 the police attended the father’s premises and seized several unregistered firearms;
aa)On 6 July 2010 the father walked out during court proceedings and waited across the road for the mother;
bb)On 6 August 2010 the mother and father attended a defended domestic violence hearing, the result of which is that the domestic violence order is extended until May 2011;
cc)In mid October 2010 the father parked behind the mother at [Z]’s school. The police were called and the father pulled a knife on the police and broke an officer’s finger. The father has been charged with several charges which have not yet been heard. The incident is set out in detail at [47] [48] [49] [50] [51] [52] and [53] of the mother’s affidavit.
dd)In April 2011 bail conditions were imposed whereby the father cannot attend at the suburb of [omitted] where the mother resides.
The mother’s view of the father’s violence
At [20] of the family report the mother spoke of the violent household with the father:-
“Ms Rickard reported that her family lived in fear of Mr Bosch and described her home life as akin to living under siege. She reported that the father had threatened her with knives in the past and she expressed her concern about the father’s possible access to firearms.”
Then at [32]:-
“Ms Rickard presented as frustrated and unsettled by what she described as the father’s inability to accept the current situation and move forward in life, she alleged that he continued to harass her and her family and described how her family lived in a state of siege and in fear of the father.”
And at [33]:-
“Ms Rickard alleged that the father stalked her every day and said that his car was sometimes seen outside her house 3-4 times a day. She reported that Police had been advised of this and had commenced regular patrols in her street. She reported that she had made a complaint to the police who had informed her that more evidence was required to establish a breach of the domestic violence order.”
As to the extent the domestic violence had occurred in front of the children is captured at [35]:-
“Ms Rickard reported a history of violence in her relationship with the father and that had on many occasions been witnessed by the children. She alleged that earlier this year the father had attended at her home and slashed the tyres on her car. She alleged that on another occasion the father had assaulted her in the front yard of her home and had pulled her hair. She reported that these were the last occasions on which the father had seen [Z] and alleged that [Z] had witnessed each of these events, as had the other children. She described the violence between them as on-going over 8-9 years and said that she had spent time in a woman’s refuge and that the Police had been involved on many occasions due to the father’s violence.”
[Z]’s view of the violence
The mother expressed concern to the family report writer as to the impact of the violence on [Z] at [37] of the report:-
“Ms Rickard reported that [Z]’s exposure to this domestic violence had had a detrimental impact upon him. She reported that [Z] had told her “I don’t like my Daddy – he hurts you.” She alleged that [Z] had come to his view as a result of having seen confrontation and abuse involving his parents. Ms Rickard reported that [Z] did not talk about his father or give any indication that he missed him. She believed that [Z] would be hysterical if he were to come into contact with his father.”
Then at [39]:-
“…Ms Rickard also expressed concern about the father “kidnapping” [Z]”
The report writer had the opportunity to speak to [Z] on two occasions, and noted at [40] that he presented as a “friendly, quiet young boy”.
When issues as to the father were raised the family report writer made the following observations at [41]:-
“….[Z] said that his father made him feel “angry”. He stated he did not want to see his father. In exploring his views about his father [Z] became withdrawn, and baby-like in his manner. He appeared to struggle when it came to talking about his father and appeared visibly stressed and on the verge of tears. [Z] said he was angry with his father for “hurting mummy” and acknowledged that he had seen his father hurting his mother. The issue was not explored further due to the distress and difficulty [Z] appeared to have in talking about his father.”
[Y] and [X]’s views of the violence
The mother spoke to the family report writer as to the impact of the father’s violence on the two older children at [38] of the family report:-
“Ms Rickard also reported that her other children, particularly [Y], were negatively affected by the father’s violence and the current situation. She reported that none of the children felt safe or secure and that they had adopted a siege mentality given the father’s stalking and harassment of them and others. She described [Y] as very fearful of the father and said she had received hysterical phone calls from [Y] at times when he was concerned that the father was at the house or nearby.”
Then at 39:-
“…She added that the children were fearful of him and did not feel safe in any contact with the father.”
The family report writer spoke to both [Y] and [X] and reports at [42]:-
“[Y] and [X] were also interviewed together at the family home. They were aware of the purpose of my visit and they openly shared their views and information regarding their family situation. They were both adamant that they did not wish to have any contact with Mr Bosch. Both children recounted a number of alleged incidents concerning Mr Bosch’s anger and violence towards their mother and their property. [X] described Mr Bosch as “not a family person” stating that he preferred to go hunting all the time instead of doing things with the family. [Y] also expressed anger towards the father and alleged that the father had been stalking them and that he had gotten “really scared” on one occasion and had locked all the doors and windows on one occasion when he and [Z] were at home alone. [Y] also referred to incidents in which Mr Bosch had “stolen” his cat, and other incidents in which the father allegedly had broken the telephone and “smashed” holes in the door or wall when angry. [X] and [Y] also recounted an incident in which they had witnessed Mr Bosch “choking” their mother as a result of an argument that had erupted between them when the father had been “extremely drunk”. They reported that the last time they had seen Mr Bosch had been the occasion on which he had come to their home and had slashed the tires on the mother’s car. Generally, [Y] and [X] gave the impression that they had witnessed significant instances of conflict, violence and destructive behaviour that from their point of view had been instigated by Mr Bosch. [X] and [Y] did not believe that [Z] should spend time with the father describing Mr Bosch as “too violent”.
The father’s view as to the violence
The father acknowledged the violence in the relationship with the mother but informed the family report writer that the mother was often the instigator of violence.
It is reported at [18] of the family report:-
“Mr Bosch argues that the mother was often the instigator of violence – a claim denied by the mother. She acknowledged having felt very angry towards the father during the relationship, as well as having slapped the father on the head in the [omitted] Tavern prior to separation, but she claims the father was generally the instigator of violence in their relationship.”
And at [26]:-
“Mr Bosch described the past relationship between him and the mother as “terrible” but stated “I loved her and protected her”. He described the mother as emotionally unstable, as suffering from depression and suicidal at times during their relationship. Mr Bosch reported that the mother had never sought professional help for her mental health. He stated that he was “good at pacifying and calming her” and he described himself as her only support. These claims are denied by the mother.”
Then at [27]:-
“Mr Bosch acknowledged that there has been recurrent violence in their relationship. He viewed the mother as the instigator of this violence and said that his role had often been to defuse the situation and said that he had tried to shelter the children from witnessing conflict and violence. He reported that the mother would become “irrationally upset” and would scream and yell at him. He alleged that there were many times where she would scream at him and “punch and kick” him while he tried to defend himself. He reported that one such incident had been witnessed by a serving Police Officer at the [omitted] Tavern and was the subject of an affidavit by the officer involved.”
Then at [28]:-
“He alleged that sometimes the mother would direct her anger towards the children and that at such times he would intervene to protect the children from her. He said sometimes he placed himself in “harm’s way” in order to protect the children from the mother. He also acknowledged that the children had “shamefully” witnessed conflict and violence involving him and the mother on regular occasions.”
In respect to the stalking claims by the mother the father informed the family report writer at [29]:-
“Mr Bosch denied the mother’s claims that he had been stalking her home and emphasised that he had no knowledge of her whereabouts. He said that he had no knowledge of her living arrangements and knew nothing about how his children were. He expressed intense anger that his children were exposed to people that he had no knowledge of and queried the extent to which the children were safe and protected.”
The family report writer’s views of the violence
The family report writer made several comments in the family report after having observed the father, the first comment at [21]:-
“Mr Bosch presented as an emotionally intense, distressed individual who struggles to contain deep feelings of grief. During the interview he was often tearful and he openly expressed his feelings of anger, hurt, frustration, disbelief and despair. His degree of emotional arousal was at times intense and confronting. He has never sought assistance in dealing with issues of grief and he said that he could not see any point in talking to a counsellor or doctor about his feelings. The rawness and intensity of his feelings indicated that despite the time that has passed since separation Mr Bosch was still overwhelmed by feelings of grief and loss and appeared to be making little headway in coming to terms with the end of the relationship with Ms Rickard and the events that followed…..”
Then at [25] it is reported:-
“..He recounted how the children were fond of climbing all over him on his return from work and how much he missed this close interaction. He repeatedly stated “I miss them a lot” and struggled to contain his tears in recounting his relationship with the children. He stated that he could not understand why he had been unable to see the children and railed against the unfairness and injustice of a system that could treat him so poorly. He complained that people who did not know him were making decisions against him and his children and he had never been given a chance to have his say. He said that others were simply responding to and accepting the claims made by the mother that in his view were motivated by spite and a desire to hurt him.”
In the evaluation the family report writer opines at [45]:-
“….it is my opinion that there is cause to be concerned about the father’s current state of mental health. His presentation as an extremely angry, distressed individual who shuns the notion of seeking any assistance for his emotional state is a cause for concern. He appears to have made no progress in healing from the trauma of separation and the events that have followed, and to a certain extent this is understandable due to him being excluded from having an on-going arrangement with [Z], as well as [Y] and [X].”
Then at [46]:-
“The question that arises in considering that fathers adjustment is to what extent his current psychological state is a product of the situation he finds himself in – that is, his experience of unresolved grief, his children being removed and what he experiences as vilification by the court system – or whether his current state is a product of character traits that cause a degree of dysfunction regardless of the situation he finds himself in. It is likely that a combination of situational and individual factors is responsible for the father’s currents state of psychological functioning.”
Then at [47]:-
“Mr Bosch expressed the view that outside of the court process and the dispute with the mother he is not the emotional, angry and disturbed individual that he presents as. He reported that others who know him would be able to support the view that he is not like that in his day to day life when not having to deal with the courts or the issues between him and the mother. His de facto partner provides some support for that view and Mr Bosch said that others will support that view. It is however notable that Mr Bosch has described himself as “not coping” and he said “every day is a struggle”. He said that he is reminded of his loss “every time I see a parent with their kids”. The extent to which these issues permeate the other areas of Mr Bosch’s social and emotional life remains uncertain. The point he makes is that he is able to contain and manage his feelings when not directly involved in court proceedings or dealing with issues associated with the mother and the children. He has however provided some contradictory comments in relation to this issue and it may be helpful to the Court for him to provide further supporting affidavit material in relation to the views of others who know him.”
Is there unacceptable risk?
I will now apply the seven summary points of Mr. Fogarty as endorsed by the Full Court decision of Johnson & Page to determine whether there is unacceptable risk to the children and in particular [Z] if time was to take place with the father.
Point 1- The decisive issue is the best interests of the children
The two older children, [Y] and [X] have spent little time with the father since separation in January 2009.
The children are now aged nearly 16 years and 13 and a half years and have expressed a very strong view that they do not want to see the father.
Further, their biological father, Mr Rickard does not want the children to see the father and states at [8] of his affidavit:-
“I do not want Mr Bosch having contact with my children…”
At [9] and [10] Mr Rickard deposes:-
“I was not aware of the extent of the violence between [Ms Rickard] and Mr Bosch until last year. I was present at the showgrounds in July 2006 when there was an incident between [Ms Rickard] and Mr Bosch…..I had taken [X] and [Y] to the amusement rides and had seen a lot of police officers heading to the cat pavilion. At that time, I did not think anything of it. However, later when we returned, I observed that [Ms Rickard] was crying and it looked like she had been hit in the moth. Mr Bosch was not there. She told me he had punched her…..”
Lastly at [11]:-
“I know that [Ms Rickard] is a great mum and I don’t want any orders made in relation to either [X] or [Y]. Both have told me about Mr Bosch hurting their mother and about how he won’t leave them alone and that they are sacred of him. I consider that it would be best for [X] and [Y] to have Mr Bosch out of their lives forever.”
The father acknowledged to the family report writer that restoring a relationship with [Y] and [X] may not occur at [12] of the family report:-
“The applicant father seeks orders that will allow him an on-going relationship with [Z] and to be closely involved in all aspects of [Z]’s life. He ideally would like to have a similar arrangement with [Y] and [X] as well but he appeared to accept that they were reluctant for this to happen and possibly wished to have no contact with him.”
Then at [31]:-
“He reluctantly seemed to accept that [X] and [Y] would not be available to spend time with him in the future and he attributed this to the influence of the mother upon the children.”
The child [Z] has not spent time with the father since January 2010, having seen the father sporadically during 2009.
The mother stated the following to the family report writer as to the father’s time with [Z] since separation at [34]:-
“Ms Rickard queried the commitment of the father to the children and reported that he was more obsessed with what was happening in her personal life rather than being interested in spending time with [Z]. She alleged that after separation his contact with the children was infrequent and that when he did visit the children he was more focussed on her and what she was doing rather than using the time to engage with the children.”
[Z] together with his siblings made their views very clear that they did not want to see the father and are afraid of the father.
The family report writer observes at [43] of the family report that:-
“The children’s presentation and the comments they made did not appear to have been scripted or coached in any way. They were spontaneous in offering their views and their affect was consistent with the comments they made. I did not gain the impression that they had been “coached” or encouraged by the mother to report in a negative manner about the father.”
In his recommendations, the family report writer was reluctant to go so far as to recommend that there be an order whereby the father not spend any time with the child [Z] stating at [49] of the family report:-
“However, I am reluctant to recommend that the Court make final orders for no contact between the father and [Z] at this stage. To deny a parent a relationship with their child is an extremely serious matter that has far reaching implications for the child and the parent as well as other family members. I acknowledge that there are however circumstances that warrant the making of such orders. However on the basis of my assessment I am reluctant to recommend that the Court make such an order without further investigation of the available options.”
As to how the further investigations are to occur was set out by the family report writer at [50]:-
“It is my opinion that Mr Bosch should undergo a psychiatric assessment and comply with any instructions or advice provided by the treating psychiatrist. This recommendation is based on my concern for the father’s psychological functioning and his seeming inability to address the problems he currently confronts, namely his emotional volatility and anger management.”
In the interim, it was recommended by the family report writer that no time occur between the father and [Z] at [54]:-
“It is recommended that no final orders be made in relation to the father’s contact with [Z] until such time as the father has undergone an assessment by a psychiatrist and has complied with all instructions and advice provided by his treating psychiatrist. Including compliance with the taking of any prescribed medications.”
The reasons for this recommendation are set out firstly in [48] of the family report:-
“I am not confident that in the current circumstances [Z] would respond well to spending supervised time with the father, let alone unsupervised time as proposed by the father……”
Then at [50] in reference to the need for the father to be psychiatrically assessed the family report writer states:-
“…Until these issues are addressed I do not believe that any final orders should be made in relation to [Z] spending time with the father. It is my view that Mr Bosch needs to achieve and maintain a degree of emotional stability before he is in any position to resume any contact with [Z].”
The father was given four opportunities by the court to attend a psychiatrist:-
a)Orders were made on 12 October 2010 for the family report to be released to the psychiatrist who was being organised by the independent children’s lawyer. The father was at that time legally represented.
b)Orders were made for trial directions on 8 February 2011. The father was at that time legally represented. The father had not attended any appointments with the psychiatrist.
c)On the first day of the hearing on 5 May 2011, the father appeared and was no longer legally represented. The father had not attended upon a psychiatrist and had not prepared any affidavits of evidence in chief. The father was angry and tense and when questioned as to what he was going to do and how was he going to address the court on his anger management issues he informed the court in a loud and verbose manner that he was not angry. The hearing was adjourned to enable the father to file material and attend upon a psychiatrist.
d)
On the first day of hearing on 21 June 2011, the father failed to appear and had not followed any of the trial directions made on
5 May 2011 for filing of affidavits or payment of a hearing fee and had not co-operated for the preparation of a psychiatric assessment.
The family report writer anticipated that the father would not follow through on any recommendations of the report writer or follow the court process firstly at [17] of the family report:-
“…..he struggles to manage his anger towards the mother as well as the legal system that he views as actively working against him and the interests of the children.”
Then at [51]:-
“Mr Bosch is unlikely to readily accept this proposal and may view this as another instance of the Court’s vilification of him and the inherent unfairness of the situation….”
The further “investigation of options” as suggested by the family report writer is now, at the time of the final hearing, at a complete standstill.
I have little choice but to then look as to why a no spend with time order was made by Terry FM on 8 April 2010 and further why it was recommended by the family report writer that no time be spent by the father with the children leading up to the final hearing.
On 8 April 2008, Terry FM delivered an extempore judgment as a result of an interim hearing. The father was at that stage legally represented.
At [27] Terry FM speaks of the limitations placed upon her making findings as to violence at an interim hearing:-
“I cannot get to the bottom of any of those disputed matters in these interim proceedings, and I particularly cannot get to the bottom of allegations about violence, but that does not mean that I can simply ignore allegations. There are occasions when allegations are so serious that the court has to err on the side of caution until a full inquiry can be conducted.”
Then at [28] Terry FM states:-
“There is a particular reason in this case to be cautious in respect of the father because of the contents of the police records which have been tendered. I accept that what I have are simply records kept by the police, and that they may individually and one after the other prove to be inaccurate when the evidence is properly tested. But in these interim proceedings I cannot simply ignore the fact that there have been numerous complaints made to the police about the father - serious complaints – and not just by the mother but by another person.”
At [29] to [36] Terry FM sets out a summary of the police records, which has been incorporated in this judgment in the chronology of violence set out previously.
Then at [36] Terry FM concludes in respect to the violence:-
“I cannot individually find on the balance of probabilities that any of those events occurred. It may be that if every one of those matters was picked apart, piece by piece, it would be found that there was no truth in any of them. I cannot however ignore the fact that there have been a series of complaints about the father over a period of more than nine years, not just by the mother, but by another former partner as well.”
In respect to [Z] and the relationship with the father Terry FM states at [44]:-
“What concerns me deeply about this matter is that in none of the affidavits is there any mention of [Z] as an individual. I am told absolutely nothing about [Z]. I do not know where he goes to school; I do not know what he likes to do; I do not know what he does with either of his parents. I am particularly concerned about that in the context of the father’s application to spend time with [Z].”
Then at [45]:-
“In the father’s affidavit there was criticism of the mother and there are responses to the complaints the mother has made about him, but there is nothing about [Z].”
As to the orders for the father not to spend time with the children Terry FM after weighing up the limited evidence and the submissions reaches the following conclusions at [63] and [64]:-
“I have considered but rejected the notion that the father should have supervised time with the children. In relation to the older children, I would not make such an order because they are old enough to have their views taken into account. The mother says they do not want to see the father.
In relation to [Z], I am not prepared to make it because I have no information about the father’s relationship with [Z]. He has told me nothing about that. For all I know, [Z] may be frightened of him. For all I know, the father may, as I said, be pursuing time with [Z] not because he has a bond with [Z] but because of an ulterior motive to do with his relationship with the mother.”
The family report writer states at [51] of the report:-
“…..I believe I have been objective and impartial in my assessment of the situation and I have maintained a careful focus on the welfare of [Z] and adopted a cautious approach that attends to the safety of all involved.”
As to why time by the father with the child should not occur until consideration of a psychiatric assessment was explained firstly at [48]:-
“He is a child that lives in circumstances of fear based on his families’ past experience and the current siege mentality that permeates the family. It seems highly likely that he has witnessed significant acts of violence involving his father, possibly including assault against his mother. In such circumstances caution needs to be exercised in considering future contact arrangements due to the risk of re-traumatising a child in all circumstances, even under supervised conditions of contact.”
Then at [50]:-
“……It is my view that Mr Bosch needs to achieve and maintain a degree of emotional stability before he is in any position to resume any contact with [Z]. My concern is that his emotional state is so labile that the experience of contact with [Z] could have a detrimental effect on [Z] and cause [Z] to be further traumatised and even more resistant to future contact.”
The mother expressed grave concerns as to [Z] having supervised time with the father at [39]:-
“She described the father as “an angry, angry man” who was often unable to control his anger and negativity. She did not believe that supervised contact should occur noting that [Z] would be hysterical and extremely fearful even under supervised conditions. She emphasised that the father had done nothing to address his issues of anger management and alcohol abuse and said that she did not foresee the father changing in the future.”
In any event, the father made it very clear to the family report writer that he would not entertain a supervised order for time with [Z] which is captured at [31] of the family report:-
“In discussing future parenting arrangements Mr Bosch angrily rejected the notion that his time with [Z] should be supervised. He stated that there was no reason for supervision to be imposed on him and he was adamant that he would not accept supervised time with [Z].”
As to the father’s time with the child [Z] the family report writer sets out the issues to be determined by the court at [16] of the report:-
“The primary issue for the Court to determine is the future of [Z]’s relationship with his father. If it is accepted that [Z] should have a relationship with the father then the issue becomes how to restore a relationship between them, and whether this is best achieved by introducing supervised or unsupervised contact.”
I therefore find that it would not be in the best interests of the children to spend time with the father based on the following reasons:-
a)There is no evidence before the court to establish that the father has had a meaningful relationship with any of the children either prior to separation or since separation;
b)Whilst the children have not been the subject of physical violence on the balance of probabilities the children have been exposed to repeated acts of violence perpetrated by the father against others;
c)The children have expressed strong independent views of not wanting to spend time with the father;
d)The children are afraid of the father;
e)The children have not spent any time with the father for at least 18 months;
f)The family consultant maintains that to re-instate and restore a relationship between the child [Z] and the father is not possible until the father addresses his anger issues and is psychiatrically assessed and if required undertaking psychiatric treatment;
g)The father has failed to address his anger problems or to obtain any assistance for any potential mental health issues;
h)In any event the father is not agreeable to any supervised time.
Point 2 – “Unacceptable risk” is an evaluation of the nature and degree of the risk and whether, with or without safeguards, it is acceptable.
I find that there are five categories of risk facing the children if time was ordered for the children to spend with the father.
The first risk is that the father will use the time with the children as a means to negatively communicate with the mother and Mr S, and that subsequently the children will be exposed to this conflict.
The father has since separation seized the opportunity to intimidate the mother and the father when the time could have been better utilised in spending time with the children.
The second risk is that the child [Z] may not be returned to the mother in accordance with any court orders.
The father has shown complete disregard for the court system in his attitude and has repeatedly failed to comply with court orders.
The mother deposes to the father threatening to take [Z].
Coupled with the father’s arrest earlier this year outside of the child [Z]’s school, this raises a real concern as to whether the father is capable of abducting or holding over the child.
The third risk is whether in the future the father would become physically violent towards the children.
Whilst there is no history of physical violence towards the children, the father has been violent to others in front of not only the three children that are the subject of these proceedings but Mr S’s children.
This disregard as to the emotional and psychological impact of the violence on the children raises real concerns that in time the violence may be directed at the children themselves.
The fourth risk is that the violence demonstrated by the father may escalate.
The father has been violent not only to persons but to animals.
[Y] speaks of the father stealing the cat and Mr S deposes to the father strangling his dog.
At [22] of the family report the father spoke at length over his distress at having his firearm licences suspended:-
“Mr Bosch also expressed considerable distress over the suspension of his firearms licence and gave the impression that amidst everything else this was one of the most difficult aspects of the current situation that he faced. He described himself as an individual who had always hunted and ‘harvested food from the wild’ and that going bush and hunting on weekends had always been a regular part of his life. He reported that now being unable to do so had left a “massive void” in his life and said that he was now denied the opportunity to hunt for five years as a result of the Domestic Violence Order. He viewed hunting as an essential part of his lifestyle that was fundamental to his well-being.”
Further in mid October 2010, after the family report was released the father was charged with numerous offences including charges relating to the father pulling a knife on the police, and breaking a police officer’s finger.
The fifth risk is that the father will not, and is unlikely to ever address his anger issues or possible mental health issues.
The father is in full denial of how intimidating and intense his disposition can be, and has angrily refuted that he has any issues that require professional help to both the family report writer and to myself.
The father has no insight as to his anger.
I find that all of the above risks are of such a nature and of such a degree that the risks to the safety and welfare of the children are unacceptable.
I further find, that as the father is not prepared to address his behaviour, that there are insufficient safeguards available to make such risks acceptable.
Point 3 - Where past abuse of a child is alleged it is usually neither necessary nor desirable to reach a definitive conclusion on that issue. Where, however, that is done the Briginshaw civil standard of proof applies.
I find that in the past that the children have been exposed to extensive violence and that the violence has caused the children emotional distress.
This however is not “abuse” in accordance with the legislation.
“Abuse” is defined in section 4 of the Act:-
“in relation to a child, means:
(a) an assault, including a sexual assault, of the child which is an offence under a law, written or unwritten, in force in the State or Territory in which the act constituting the assault occurs; or
(b) a person involving the child in a sexual activity with that person or another person in which the child is used, directly or indirectly, as a sexual object by the first-mentioned person or the other person, and where there is unequal power in the relationship between the child and the first-mentioned person.”
Point 4 - The circumstance, if it be so, that the allegation of past abuse is not proved in accordance with Briginshaw, does not impede reliance upon those circumstances in determining whether there is an unacceptable risk.
I find that even in the absence of abuse, that the children are still at risk and that the risk is unacceptable.
Point 5 - The concentration in these cases should normally be upon the question whether there is an unacceptable risk to the child.
As previously stated I find that there is unacceptable risk to the children and therefore it would be in the best interests of the children not to spend time with the father.
Point 6 – The onus of proof in reaching that conclusion is the ordinary civil standard
The standard applied in reaching this finding is on the balance of probabilities.
Point 7 - But the components which go to make up that conclusion need not each be established on the balance of probabilities. The court may reach a conclusion of unacceptable risk from the accumulation of factors, none or some only of which, are proved to that standard.
The circumstances of this matter are such that whilst all facts could not be proved to the standard of balance of probabilities, that the accumulation of the large number of factors support a finding that the children are at an unacceptable risk if time is spent with the father.
Conclusion as to the Primary Considerations
As a finding has been made as to unacceptable risk, it is not necessary for me to consider any other considerations contained in section 60CC, as it is not in the best interest of the children to spend time with the father.
Parental responsibility
Section 61DA states:-
“(1) 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.
(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parent's family (or that other person's family); or
(b) family violence.
(3) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4) 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.”
It is submitted by the mother that the presumption does not apply as there has been family violence.
I agree.
I therefore find that the presumption of equal shared parental responsibility does not apply.
The mother is seeking an order for sole parental responsibility.
The family report writer supports a sole parental responsibility order in favour of the mother at [19] of the family report:-
“The relationship between the parents is also a factor for the Court to consider in terms of future parenting arrangements. The likelihood of the parents ever being able to work together even at a minimal level in parenting the children is an issue that needs to be considered, particularly the potential for future conflict and possible violence to occur.”
Conclusion on parental responsibility
I find that an order for sole parental responsibility in favour of the mother is an appropriate order in this matter and is in the children’s best interests.
Change of name
The mother is seeking an order that the child [Z]’s name be changed from[Z] [Chalmers] to [Z] Rickard.
The leading decision on change of name is the Full Court decision of Chapman & Palmer (1978) FLC 90-510, which sets out a number of criteria which the Court must look at in determining whether there should be a change of name.
The first criterion is that the welfare of the child is a paramount consideration.
The child’s surname “Chalmers” is not the surname of either the mother (Rickard) or the father (Bosch) but the name of the father’s grandmother.
The mother submits that the father insisted on this name as it would prevent him from paying child support if the parties separate.
The father states that the name was agreed upon as it enabled the mother to continue to collect single mother’s payment and government housing.
I cannot make a finding as to why the name was chosen, nor is it necessary in respect to the application for a change of name.
The child lives in a family unit where his brother, his sister and his mother all have the last name “Rickard”.
The child has no association with any family member that has the surname “Chalmers”.
The child has never been known as “Bosch” which is the surname of the father.
I find that it is in the child’s welfare to have the child’s surname “Rickard”.
The second criterion is the short and long term effect of any change in the child’s name.
I find that any change in the child’s surname to “Rickard” will be a positive change to the child [Z] in both the short term and the long term as it will provide the child with a sense of inclusion in having the same name as his brother, sister and mother.
The third criterion is any confusion of identify which may arise for the child if his name is or isn’t changed.
Because of the child’s age, there would be no confusion of identity for the child should the name be changed.
The next criterion is any embarrassment likely to be experienced by the child of the name if the name is different from the parent who had the primary care.
I find that there is no foreseeable embarrassment in [Z] having the same name as his immediate family.
The next criterion is the effect which any change in surname may have on the relationship between the child and the parent whose name the child bears.
I find that this criterion does not apply as the current surname of the child is not the surname of the father.
The last criterion is the effect of frequent or random changes of name. This does not apply in this matter.
Conclusion on Change of name
I therefore find that applying these criteria that it would be in the best interests of the child [Z] to have the surname of “Rickard” and that because of the difficulty with communication with the father and the history of domestic violence that the father’s signature is not required for the name change to occur.
Lifting the airport watch
There is no evidence before the court to support that in the future the mother may be a flight risk with the children.
Further there is evidence that the mother is in a committed relationship with Mr S, a Darwin resident and father of two children and that
Mr Rickard, the father of [Y] and [X], spends regular time with the children.
Conclusion on lifting the airport watch
I therefore find that it is in the best interests of the children for the airport watch to be lifted and that the mother have permission to travel overseas with the children without obtaining the consent of the father.
Restraining and injunctive orders
The mother is seeking orders that the father be restrained and an injunction be granted restraining the father from contacting or communicating with the mother and the children, or from coming within 500 metres of their home, the mother’s workplace and the children’s schools.
The power of the court to grant such injunctive relief is contained in section 68B which reads:-
(1) If proceedings are instituted in a court having jurisdiction under this Part for an injunction in relation to a child, the court may make such order or grant such injunction as it considers appropriate for the welfare of the child, including:
(a) an injunction for the personal protection of the child; or
(b) an injunction for the personal protection of:
(i) a parent of the child; or
(ii) a person with whom the child is to live under a parenting order; or
(iii) a person with whom the child is to spend time under a parenting order; or
(iv) a person with whom the child is to communicate under a parenting order; or
(v) a person who has parental responsibility for the child; or
(c) an injunction restraining a person from entering or remaining in:
(i) a place of residence, employment or education of the child; or
(ii) a specified area that contains a place of a kind referred to in subparagraph (i); or
(d) an injunction restraining a person from entering or remaining in:
(i) a place of residence, employment or education of a person referred to in paragraph (b); or
(ii) a specified area that contains a place of a kind referred to in subparagraph (i).
(2) A court exercising jurisdiction under this Act (other than in proceedings to which subsection (1) applies) may grant an injunction in relation to a child, by interlocutory order or otherwise, in any case in which it appears to the court to be just or convenient to do so.
(3) An injunction under this section may be granted unconditionally or on such terms and conditions as the court considers appropriate.
Conclusion on restraining and injunctive orders
I find given the extensive history of violence in this matter, and that the father is currently on charges pertaining to the father’s anger whilst in attendance at [Z]’s school, that the injunctive relief sought by the mother needs to be included in the orders.
Conclusion
Undefended hearings are always difficult, especially in respect of children’s issues.
Whilst it is a drastic measure at any time for a court to make a no spend with time order in respect to a parent, it is even more severe to make such an order at an undefended hearing.
But this matter has all the hallmarks of a case where extreme caution must be taken in determining what is in the best interests of the children.
There is an extensive history of violence perpetrated by the father, not only against the mother, but against her partner, the father’s former partners and in more recent times against the police.
The father refuses to acknowledge that he has any issues with his anger, blaming everyone but himself for the situation that he currently is in.
The father is loud, aggressive and intimidating and has little respect for authority.
This is a man who described the most difficult aspect of his current situation as being the loss of his firearms and his ability to hunt.
The father’s behaviour both before and after separation has resulted in three children who are afraid of the father and do not want anything more to do with him.
Although the children themselves have not been the subject of physical violence by the father, they have all witnessed the violence of the father taken out against others.
Since separation the father’s violence has escalated, accumulating in an arrest earlier this year involving the father allegedly drawing a knife on the police and breaking a police officer’s finger.
I find that the father poses an unacceptable risk on the children and that orders whereby the children not spend time with the father is in the best interests of the children.
I certify that the preceding one hundred and ninety-nine (199) paragraphs are a true copy of the reasons for judgment of L. Turner FM
Date: 20 July 2011