BRENNAN & EMERY
[2014] FamCA 492
•9 July 2014
FAMILY COURT OF AUSTRALIA
| BRENNAN & EMERY | [2014] FamCA 492 |
| FAMILY LAW – CHILDREN – With whom a child lives – Best interests of the child – Where mother has been the primary carer of the children for most of their lives other than for the period they were in foster care – Where father does not seek any order to displace the current arrangements where the children live with the mother – Court ordered it is in the best interests of the children that they live with the mother. FAMILY LAW – CHILDREN – With whom a child spends time – Whether father presents as an unacceptable risk of physical or sexual harm to the children – Where a child and step child made disclosures – Where there is a degree of specificity to the time, place and specific content of the alleged abuse – Where father denies he was the perpetrator – Where given the absence of any opportunity to the father to challenge the child’s version of events and explore the possibility of alternate perpetrators the Court was not persuaded on the balance of probabilities that in fact the assaults occurred – Where Court satisfied there is a real risk of sexual abuse associated with the father – Where Court satisfied on the balance of probabilities that the father presents an unacceptable risk of sexual abuse to the child – Where child experiences real ambivalence about seeing her father – Where children suffer from medical conditions – Where a child suffers from a medical condition that would impact on a change in current circumstances – Where practically difficulties for father to spend supervised time with the children as considerable distance between the parties residences – Where block holiday time precluded on the basis that the father presents as an unacceptable risk of sexual abuse to a child and as such would not be in the children’s best interests – Where the Court found the father does not have the capacity to provide for the emotional needs of either biological child – Where father sought supervised time at a contact centre as an alternative to block time – Where only contact centre identified by father is not in sufficient proximity to where the mother lives – Where Court found it was not in the best interests of the children to prohibit further contact or communication with the father as sought by the mother – Where Court ordered the father be at liberty, in the event that he can identify an appropriate contact centre, to seek orders for supervised time between himself and the children – Where Court ordered the father’s application be otherwise dismissed. FAMILY LAW – CHILDREN – Presumption of equal shared parental responsibility – Where there has been family violence involving both children – Where other allegations of violence towards the children by the father – Where presumption rebutted – Where parties have not been able to have a civil conversation for seven years – Where father has not lived with the children in excess of seven years – Where difficult to see in the circumstances what insight the father could bring to bear in decisions in relation to the children – Where Court determined mother to have sole parental responsibility. FAMILY LAW – CHILDREN – PRACTICE AND PROCEDURE – Where standard of care in civil litigation is proof on the balance of probabilities – Where appropriate consideration of the gravity of the matter is required in determining whether or not the Court is satisfied of its existence on the balance of probabilities. |
| Evidence Act (Cth) s140 In the Marriage of Toben (1999) 24 FamLR 635 |
| APPLICANT: | Mr Emery |
| RESPONDENT: | Ms Brennan |
| INDEPENDENT CHILDREN’S LAWYER: | Ms Toomey |
| FILE NUMBER: | BRC | 604 | of | 2009 |
| DATE DELIVERED: | 9 July 2014 |
| PLACE DELIVERED: | Townsville |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Tree J |
| HEARING DATE: | 26, 27, 28 February 2013 and 1 March 2013 |
REPRESENTATION
| THE APPLICANT: | In person |
| THE RESPONDENT: | In person |
| COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER : | Ms Sweetapple |
| SOLICITORS FOR THE INDEPENDENT CHILDREN'S LAWYER | Schultz Toomey O’Brien Lawyers |
Orders
The mother have sole parental responsibility for the children J born … 2003 and N born … 2005.
The children live with the mother.
In the event that the father can identify a supervisor or Contact Centre sufficiently proximate to the mother’s residence, that he have liberty to apply restricted only to seeking orders permitting him to spend supervised time with the children.
The Independent Children's Lawyer be forthwith discharged with the thanks of the Court.
Save as aforesaid all extant applications stand dismissed and the matter be removed from the list of active pending cases.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Brennan & Emery has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
FILE NUMBER: BRC604 of 2009
| Mr Emery |
Applicant
And
| Ms Brennan |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
These proceedings relate to the parenting arrangements for two children, J (born in 2003, and presently 11 years of age) and N (born in 2005, and presently 8 years of age). By his Amended Initiating Application filed 24 August 2012, the applicant father only sought orders for shared parental responsibility of the children, however during the course of the trial, he also sought orders that the children spend unsupervised time with him for one half of all school holidays, together with telephone communication. By her Amended Response to Initiating Application filed 14 March 2012, the mother sought orders that she have sole parental responsibility for the children, who would live with her, and have no contact whatsoever in any form with the father. In broad terms the Independent Children’s Lawyer supported the orders sought by the mother.
The principal issue in the proceedings before me related to whether or not the father posed an unacceptable risk of harm to the children, such harm said to be of either physical, sexual or emotional abuse, or some combination of them. The father denied he had ever so abused the children, or that he posed any such risk. However he did not seek to mount a case, in the event I were to determine that he did not pose any such risk to the children, that the circumstances in which the alleged disclosures had been made by the children were such that I should find that the mother posed an unacceptable risk of emotional harm to the children, either by coaching or otherwise prompting them to make the disclosures.
BACKGROUND FACTS
The father
Mr Emery, (“the father”) was born in 1977, and at the date of these reasons is presently 37 years of age. His childhood was spent in Queensland Town C, Papua New Guinea, Brisbane and Queensland Town D, in which latter city he completed year 12. He remained living there for a further 4 years, employed by Government Agency G, before transferring that employment to Queensland Town E in about 1998. Whilst in Town E he gained employment in Government Agency H, and it was at that stage of his life that he met the mother.
The mother
Ms Brennan, (“the mother”) was born in 1981, and is presently 32 years of age. Although she was the only child to her parents’ relationship, they had separated before she was born; her mother later re-married and divorced three times. The mother had very little limited contact with her biological father, only locating him in 2004. Between the ages of 7 and 13 years, the mother has in the past asserted that she was sexually assaulted by her step father, who remains her mother’s current partner. In consequence, the mother left home at 13 and was fostered to several families. She commenced a relationship with her first partner, Mr A, when she was of 16 years of age. This relationship continued for five years and saw the mother’s first child, B, born in 2000. During this phase of her life, the mother admits to the occasional use of marijuana and some use of alcohol. Apparently Mr A used amphetamines, and was violent towards the mother.
The mother left Mr A and moved to Town E with B, and it was there, in January 2002 when she was 21 years of age, that she met the father. In December 2006 she told a psychologist, Ms F, that from the commencement of her relationship with him, the father was extremely supportive of her and B, and they soon became engaged following an intense romance.
Pre-separation
Shortly into the parties’ relationship, the father transferred from Government Agency H to Government Agency M, and in June 2002 commenced three months training in Victoria. Whilst he was on that posting, the mother advised him that she was pregnant with what was to prove to be their first child, J. In September 2002, the father completed his training and was posted to Town I, near Town C. In consequence, the parties obtained government housing in Town C, and the mother and B moved from Town E to live there with the father. Whilst the parties were living in Town C, J was born in 2003. In 2005 the mother was found to be 13 weeks pregnant with N, who was born in 2005. The parties married in November 2005.
Whilst living in Town C the parties had their first contact with child safety authorities. I will consider that in greater detail in due course.
In late 2005, the father’s government section relocated to Darwin in the Northern Territory. In the knowledge that he would be posted there in early 2006, the father travelled to Darwin in November 2005. Not long after he arrived in Darwin, the mother contacted the father’s section demanding that he come home to Town C because she could not cope with the children. The father says he arrived back the next day. Ultimately the mother, father and the three children relocated to Darwin in January 2006.
It is clear that the parties did not adapt well to living in Darwin. It appears as though the mother began to substantially abuse alcohol, perhaps because of her suspicions that the father was being unfaithful to her. The parties argued extensively in front of the children. There were many violent episodes. During the course of one argument, the father asserts – and the mother did not deny – that the mother lunged at him with a kitchen knife, in consequence of which he sustained a 20cm gash down the left side of his chest and stomach. The mother continued to act in an uncontrolled manner, and in consequence of a neighbour’s call, police attended and the mother was hospitalised in the psychiatric wing of Hospital K for approximately 3 days.
On another occasion in July 2006, the mother telephoned the father’s government section, threatening to kill N by slitting his throat if the father didn’t come home from work. This episode precipitated a further period of about two weeks hospitalisation of the mother in a psychiatric ward.
The children were unfortunately far from immune from either witnessing or being involved in these sorts of events. As but one example (albeit an important one because it precipitated the involvement of the authorities) on 9 September 2006 the father returned home from work, and upon being asked by J if she could have a slice of cheese, gave her some. It seems clear that the mother immediately went into a rage, grabbed an empty 2 litre coke bottle, and flung it at J, with the lid of the bottle hitting her on the left side of her forehead. The police were called and notified the Northern Territory Department of Family and Community Services (“FACS”).
In an application by FACS later made on 30 March 2007[1] that all three children be found in need of care, it is said that FACS officers interviewed the mother on 14 September 2006 in relation to this episode. During that interview she reported, amongst other things, that she was depressed, had low self-esteem and was insecure in her relationship with the father. Further, she reported that the family was socially isolated in Darwin, and that the father treated her poorly and did not respect her. Observations at the time were that the mother appeared highly stressed.
[1] Commencing at p 435 of exhibit 1.
FACS Officers subsequently interviewed both the father and B. On 27 September 2006 during the course of the interview with B she stated, amongst other things, that the incident where the coke bottle hit J occurred when “the mother was angry with dad” and that “they were having a little fight”. B also stated that the mother “sometimes gets very very very temperature up and breaks stuff” and reported that the mother used a “big Tupperware spoon and wacked me” and that “dad smacks me too, anywhere.” She stated that she got angry when her father smacked her. She further stated that the father “teases me a lot and tells me I smell bad.” She said that made her angry and that she says “stop to dad and he never stops, when he says I smell bad, I cry and he laughs.” FACS arranged for B to attend a psychologist on 23 November 2006. On 30 November that psychologist reported to FACS, amongst other things, that B’s anxiety levels were extremely high and that she was severely traumatised.[2]
[2]The psychologist’s report formed part of exhibit 1, and at pp403 and 414 there are summaries of B’s and J’s perceptions of family violence they experienced.
During the course of FACS home visits on 9 November 2006, 20 November 2006 and 6 December 2006, Departmental officers observed bruising to the children, and formed the view that there was inadequate supervision of them, including observing J climb on top of a stair rail, straddle it, and start to slide down it. She would then have been only 3 years of age.
On 7 December 2006, the family and FACS officers had a meeting. The upshot of that was that the parties voluntarily agreed to place all three children into foster care for a period of two months. When FACS explained to the children that they were trying to help their mother and father get along better, and make the home happier, B responded by saying that they can “stop smacking and swearing and breaking stuff” and J added “stop punching.”
The parties then commenced spending supervised time with the children. During that period, it was observed that they struggled to manage more than one child at any one time, and indeed, on occasion, ended access early due to struggling to manage the children.
In their Application made 30 March 2007 that all three children be found in need of care, a FACS officer deposed as follows:
During supervised access, the father has been observed to whisper to the children. On the 19th of January 2007, the father was observed talking quietly with the child [J], stroking her hair and giving her lots of kisses on the head and cheek. The father was also observed to spend much of access time with the child [J].
On 21 February 2007 the father sent an email to a number of animal welfare organisations offering to abstain from his hobby of recreational shooting of animals if, at an auction of his “right to hunt” over the succeeding three months, more than $10,000.00 was raised. The penultimate paragraph of that email provided:
If the auction doesn’t raise this amount within the next three months, then I’ll personally email all of you a picture of me back out hunting all of the aforementioned beasties again!
This email was sent from his Government Agency M email account. It appears as though a complaint was made to Government Agency M. The father was interviewed on 27 February 2007 as part of an investigation into the email, but denied that he had any serious intent to obtain $10,000.00 as he “knew that it would never get paid.” He was referred for psychological examination and was assessed on 28 February 2007. That assessment[3] in part is as follows:
[The father] impressed as being in an extraordinary state of denial regarding his family problems… The [employee] reports low stress, which supports my impression that he has very limited remorse, a profound lack of emotional maturity, and ingrained denial… The [employee] was advised that [Government Agency M] was supportive of him and his family, but that he represented an unacceptable liability to [Government Agency M], and was recommended for [dismissal]. I would advise against [Government Agency M] trusting this [employee] in future (ie no [re-employment]). However it is recommended that the [employee] be allowed a further (closely monitored) 8 weeks of [employment] to allow the family to prepare for a transition to [being dismissed]. The [employee] stated that he was not terribly perturbed by [dismissal]…
[3] Exhibit 1 p.549.
The psychologist recommended that “the father was not suited to be an [employee] of [Government Agency M].”
All this is in marked contrast with the father’s version of events contained in his affidavit filed 29 March 2012 where, in dealing with his dismissal from Government Agency M, he said as follows:
I returned to [Town E] on May 24th and the [dismissal] from [Government Agency M] came into effect on May 31st. I [left] of my own volition…
During the course of his evidence, the father was questioned about the honesty of that answer. His ultimate position appeared to be that he had a right to contest the compulsory dismissal from Government Agency M, however he chose not to, and on that basis said that the dismissal was of his own volition. That explanation is wholly unconvincing and I reject it.
In March 2007 FACS officers called the father and mother to their office and told them that one of the children (refusing to say which) had made an allegation of sexual abuse (again refusing to say what) against one of them (refusing to state who). The mother and father were advised that the police had been notified and that once they had investigated, FACS would determine how any contact in the future with the children progressed. All contact between the parties and the children was then ceased.
Subpoenaed material in the FACS file establishes that in fact it was J who had made disclosures that she was being sexually abused by her father. I will discuss the detail of her disclosures later in these reasons.
The father asserts, and there is no contrary evidence, that after two weeks of hearing nothing further, he contacted the relevant investigating officer. He was advised that the police view was that there was no substance to the notification that the Department had made, and that they were not proceeding to charge.[4] He then immediately sought to reinstate contact, and both parties spent supervised time with the children on the father’s birthday in March 2007.
[4]Apparently because the disclosures of sexual abuse were elicited from either B or J – see exhibit 1 pp193, 195.
On 2 April 2007 the mother and father attended the FACS office in Darwin. At this time the mother and father remained living together. The FACS worker said that they wished to speak to the mother first. The father says – and I have no reason to disbelieve him – that he went away from the office briefly, but when he returned, heard the mother screaming and saying that she wanted to kill him. He said he heard furniture being moved around the interview room and walls being hit. It appears as though the father then met with the FACS workers. They advised him that they knew it was he who had abused the child in question, although again they didn’t identify which child. It appears from the oral evidence of the father, that in his meeting with the FACS workers he was advised that the mother had terminated the relationship, and he was then given the mother’s wedding ring.
Post separation
The mother was immediately placed by FACS in emergency accommodation, and has not co-habited with the father since that time. That night the mother and father had a long telephone conversation, during which the mother inquired of the father how he could do “that” to their children, but the father denied that he had ever done anything wrong. On the evidence before me, this is the last occasion when the mother and father have had any meaningful communication. The only subsequent communication has been Court related: on one occasion at a Court hearing the mother told the father that if he wanted a divorce, she was fine with that; the next conversation was on the first day of the hearing of this trial at which, on the uncontested evidence of the parties, the father said to the mother that “he was sorry that it had come to this” and the mother said “please don’t speak to me.”
It appears as though some time in April 2007, the Family Matters Court of the Northern Territory made orders with the consent of the parties formally placing the children into FACS care. Whilst the evidence is unclear, the initial set of orders appears to have been for a few months, but thereafter it seems as though a second set of orders were made that were intended to last for two years.
The mother left the Northern Territory and returned to Queensland in April 2007, living in Town L. She re-partnered in 2008. The father returned to Queensland to live in Town E on 24 May 2007, and later returned to Town C, and there commenced a relationship with Ms P. She has a number of children to previous relationships.
The children remained in foster care in the Northern Territory, notwithstanding the fact that neither of their parents remained living there. It appears as though from Queensland, the mother was having monthly phone contact with the children.[5]
[5] See Planning Meeting notes dated 12 October 2007 part of exhibit 1, unpaginated.
Whilst in foster care in the Northern Territory, B was attending a psychologist, Ms O. Notes of a planning meeting of FACS officers dated 12 October 2007 contain what appears to be the first record of B disclosing sexual abuse by the father, during the course of a consultation with Ms O. I will return to consider the detail of that in due course. At about the same time, both J and B were exhibiting sexualised behaviours. For instance J was noted as having been masturbating in public[6] and B was reported to be displaying behaviours such as taking N into a room and taking off his nappy, placing him on her middle and moving him up and down.[7] Further entries relating to sexualised behaviours of the girls are contained in exhibit 1 at pp192-193.
[6]Recorded in Planning Meeting notes of 12 October 2007.
[7]Family Matters Court report at annexure 1 to the father’s affidavit of 29 March 2012.
By a process which is not clear on the evidence, and in any event probably irrelevant for the purposes of these proceedings, FACS embarked upon a course of action designed to ultimately reunify the children with the mother in Queensland. The first step was to return the children to South East Queensland, which occurred on 12 November 2007 when the children were placed with a foster carer there. Seemingly simultaneously, the responsibility for the children passed from FACS to the Queensland Department of Communities (Child Safety) (“DOCS”), which also adopted a strategy of working towards reunification. Initially the children were in the same foster placement; at a time which is unclear, that changed, so that B and N were with one foster carer, whereas J was with another.
On 22 January 2008, B’s then carer contacted DOCS to advise that B had made a disclosure of sexual assault by the father. Although I will detail the disclosure later in these reasons, it is convenient to note at this point that DOCS’ investigation into the notification concluded with a finding of abuse by the father being substantiated.
On 30 January 2008 the mother had her first unsupervised contact with the children since they were put into care. During the course of that, B made disclosures of sexual abuse by the father in Darwin. Again I shall consider these disclosures in greater detail in due course.
Inevitably there must have been a regime of Queensland Court Orders underpinning DOCS involvement, however the material does not really enable me to establish a firm chronology, but it is clear that a final Child Protection Order was made on July 2009 for a 12 month period granting guardianship of all three children to the Chief Executive of DOCS during which time reunification would be gradually implemented. B and N were reunified with the mother on a fulltime basis in September 2009, and J was placed back into the mother’s care in December 2009.
In early 2009 the father attended a Psychiatrist, Dr Q. His evidence of the consultation is as follows:
[The father] stated that Department of Child Safety staff had told his girlfriend [Ms P] when he was investigated in March 2008 that her children would be removed as she was associating with him and had allegedly had told her that he was going to be sent to prison. [The father] reported that the relationship ended following this.
Ultimately the father and Ms P appear to have reconciled, however all three of her non-adult children now live with their father, and in consequence, so it appears, of DOCS’ concerns about the father, only spend time with their mother at her mother’s home in Town C, and not at all at the father’s home.
On a date which is not clear on the evidence, but seemingly prior to September 2009, the father commenced having supervised time with both the children in Town L facilitated by DOCS. In September 2009 DOCS made arrangements for the father to spend time with N in an unsupervised capacity. By December 2009 the father was spending three hours of unsupervised time with N and a separate one hour supervised time with J.
In March 2010, during the course of unsupervised time being spent with N, an event occurred after which N asserted that the father had attempted to drown him. In consequence of that, the unsupervised time that the father was then spending with N ceased. In its place, there was supervised time with both children at a Contact Centre at Town L known as “R Contact Centre”. The first two hour monthly supervised session took place on 11 July 2010. The next visit which was to occur on 8 August was cancelled by the father; the mother then cancelled the next visit scheduled for 5 September. There was a supervised session on 3 October 2010 which was apparently uneventful, however the next scheduled date of 31 October did not occur, the precise reasons being unclear.
The final supervised session occurred on 19 November 2011. Both J and N attended. The events on that day are controversial and I will discuss them in detail later. However as a consequence of the visit, the Centre refused to supervise the father further. Other than incidental to the preparation of the second Family Reports the father has not thereafter spent any time with or communicated with either child. I will detail the father’s interactions with the children in both that context, and his behaviour during the interactions with the children in the course of the preparation of the first Family Report, later in these reasons.
As at the date of trial, the father held a part-time job as a supervisor at Business S in Town C. In 2012 he had been retrenched from a position he had held for some time at a TAFE college, but had not sought permanent fulltime work since then, as he was aware that this case was pending, and further was aware that holiday contact with the children was being sought by him, which may impact upon leave entitlements and the like in any new position.
The mother and her partner Mr Brennan have two children, T born in 2009 and U born in 2012. At a date which is unclear, the mother, the five children and Mr Brennan moved from Town L to the Town V region where they continue to reside. Neither the mother nor Mr Brennan are in employment, but describe themselves as undertaking home duties, and being full-time parents.
J is presently 11 years of age and in grade 6. According to the mother’s affidavit filed 28 March 2012[8] J has been diagnosed with Transverse Myelitis Disorder. In that affidavit she went on to say:
..[towards the end of 2011] she was hospitalised in the [Hospital W] in Brisbane for approximately two months.. some of her symptoms included temporary paralysation, to the extent that she was unable to walk, and also incontinence issues. She now requires up to five catheters per day, and she is required to wear pull-ups during the day at school to prevent any accidents… She has thankfully been improving, and I have been told by medical practitioners this is a temporary condition only, and those symptoms will soon resolve.
[8]Para 75.
Further, J has been diagnosed as suffering from ADHD, ASD and Tourette’s Syndrome. Inevitably that makes her a difficult child to parent. The mother gave unchallenged evidence that routine is particularly important to J, and that she will become very agitated and upset if her routine is not followed. She also becomes agitated and upset if her half-sister, B, with whom she shares a bedroom, moves her possessions or touches them.
N is presently 8 years of age, and in grade 3. He has been diagnosed as suffering from ADHD. He is medicated for that condition.
THE PARTIES’ PROPOSALS
The orders which the father sought were identified by him at the commencement of the trial as being that the parties should have equal shared parental responsibility for both children, who should live with the mother, but spend one half school holidays with the father, and during school terms, enjoy telephone contact with him.
The mother’s position was that the father should have absolutely no contact with the children whatsoever.
The Independent Children's Lawyer ultimately supported the position of the mother, albeit in part that was because there was no venue for supervised contact that could be practically identified. In the event that a venue could be identified, then it may be that the Independent Children's Lawyer would support supervised contact of J, and it was conceded that there was a possibility that unsupervised time with N may be possible sometime in the future.
RELEVANT LEGAL PRINCIPLES
The statutory framework
A convenient starting point is section 61DA of the Family Law Act, which by sub-section (1), provides that the court must apply a presumption that it is in the best interests of the child for their parents to have equal shared parental responsibility for him or her. In the event that, either because that presumption applies, or because it is otherwise in the child’s best interests that there be an order providing for equal shared parental responsibility, the court is obliged pursuant to section 65DAA(1) to then consider certain matters, including whether the child should spend equal time with each of the parents, or substantial and significant time.
However s 61DA(2) provides that 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 either 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 family violence. Further, subsection 61DA(4) provides that the presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for its parents to have equal shared parental responsibility.
Finally s 60CA provides that in deciding whether to make a particular parenting order, the court must regard the best interests of the child as the paramount consideration. The matters which a court must have regard to in determining the best interests of a child are set out in s 60CC.
Standard of satisfaction required
S 140 of the Evidence Act (Cth) provides as follows:
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;
(b) the nature of the subject-matter of the proceedings;
(c) the gravity of the matters alleged.
In Neat Holdings Pty Ltd v Karajan & Holdings Pty Ltd (1992) 67 ALJR 170 at 170-171 the majority of the High Court stated:
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 fact 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 likely make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct.
Plainly, conduct that effects, or has a risk of, physical or sexual harm to a child, is very serious, and likely criminal. Further, the consequences attaching to a finding of the kind sought by the mother could potentially be grave. As is demonstrated by this case itself, based upon such a fact being established, a party could seek to use it to found an argument that the other parents’ time with the child should be either wholly terminated, or be supervised, even permanently. Therefore consistent with s 140(2), given the gravity of the allegations which the parties make again the others in this case, I propose to carefully evaluate the evidence relied upon in support of such a contended finding and be particularly vigilant to identify and place reduced weight upon “inexact proofs, indefinite testimony or indirect inferences.”[9]
[9] See K v R (1997) 22 FamLR 592 and Re W (Sex Abuse – Standard of Proof) [2004] FamCA 768 at [15].
THE ISSUES
The parties identified the following as being the issues which stood to substantially determine which of the competing proposals was in the best interests of the children:
·Whether the children are at an unacceptable risk of sexual, physical or emotional abuse in the unsupervised care of the father;
·The children’s medical conditions, and the extent to which that impacts upon appropriate care arrangements for them;
·The wishes of the children in relation to their care, and the weight that should be given to them.
CONSIDERATION OF S 60CC FACTORS
S 60CC(1)(a): The benefit to the child of having a meaningful relationship with both of the child's parents
No party contended that it would not be of benefit to both children to have a meaningful relationship with the mother. However it was not conceded by either the mother or the Independent Children's Lawyer that the children would necessarily benefit from having a meaningful relationship with the father. In large part, that was because it was contended by both those parties that the father’s behaviour was self-focused, self-fulfilling and displayed a lack of inhibition and poor boundary settings, but more importantly, that he lacked insight into the impact of such behaviours upon the children. Although plainly relevant under this particular consideration, I will discuss that in greater detail later in these reasons.
S 60CC(1)(b): The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
Overview
As I have already identified, this was the principal battleground between the parties in the proceedings before me. The mother asserts that the father has physically and sexually abused the children, or at least that I should be persuaded that the father presents as an unacceptable risk of such harm. She also asserts that the father presents an unacceptable risk of emotional harm to the children. Upon analysis however, there is a substantial overlap between the allegation of the risk of sexual harm to the children, and the risk of emotional harm to the children. It is therefore convenient to consider both of those matters jointly, albeit acknowledging that they are not entirely overlapping. The father vehemently denies any wrongdoing on his part or that he represents any type of unacceptable risk to the children.
The law
“Abuse” is defined in s.4 of the Family Law Act in the following terms:
Abuse, in relation to a child, means:
(a) an assault, including a sexual assault, of the child; or
(b) a person (the first person) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is unequal power in the relationship between the child and the first person; or
(c) causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or
(d) serious neglect of the child.
Neither the term “neglect” nor indeed “serious neglect” appears to be defined in the Act; absent any indication in the Act to the contrary they should therefore have their usual dictionary meanings. I can discern no contrary indication in the Act. The relevant definition of the word “neglect” in the Macquarie Dictionary is “to be remiss in care for or treatment of.”
“Family violence” is defined in s 4AB(1) of the Family Law Act in the following terms:
For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the persons family .. or causes the family member to be fearful.
S 4AB(3) provides that for the purposes of the Act, a child is exposed to family violence if the child sees or hears family violence, or otherwise experiences the effects of family violence. S 4AB(2) and (4) respectively give examples of behaviour that may constitute family violence, and examples of situations that may constitute a child being exposed to family violence.
It is useful to consider the authorities which give some guidance as to what is an unacceptable risk, and particularly the relationship of any such risk with the orders that the Court is contemplating. A useful starting point is the decision of the Full Court in N & S & The Separate Representative (1996) FLC 92-655, where in the well-known passage at 82,713-4, Fogarty J said:
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 a particular case fall, and explain adequately their findings in this regard.
In Harridge & Harridge [2010] FamCA 445 Murphy J, having recited the above passage, proceeded to adopt the following list of inquiries in relation to risk assessment:[10]
(1) What harmful outcome is potentially present in this situation?
(2) What is the probability of this outcome coming about?
(3) What risks are probable in this situation in the short, medium and long term?
(4) What are the factors that could increase or decrease the risk that is probable?
(5) What measures are available whose deployment could mitigate the risks that are probable?
[10] Taken from B Mahendra “Psychiatric Risk Assessment in Family and Child Law” (2008) 38 Family Law 569.
I gratefully also adopt that passage as helpful in cases such as these in analysing the asserted risk.
The evidence of sexual abuse
The first disclosure of sexual abuse was made by J on 8 March 2007 to FACS Officers in Darwin. At para 33 of FACS’ application that the children be found in need of care, there appears the following:
… [J] disclosed the following:
· That she has showers with dad (NB. [J] called him “[the father’s given name]”). She was talking about [the father] being the bogeyman in the room. It should be noted that [J] was difficult to understand and that [J] has minimal eye contact, and looks down, constantly, when speaking to FACS workers and carers;
· That she and her dad play football in the shower and do star jumps;
· That she washes dad (NB. [J] became distracted, moving around a lot);
· When asked about washing her dad, [J] made hand movements and curved her fingers and moved her hand back and forth. When asked again where,[J] pointed and cupped her vagina area and stated that he ([the father]) then says “ooooh” and “oh man, oh man, oh man”. When asked what then happens, [J] says “gets bigger”;
· [J] stated that she washed his legs and his bottom. She reiterated, when questioned again, that she washed dad’s “fanny”;
· [J] then started praying and said “god, I know your going on a big trip, thank you god for everything.” (The carers are understood to be teaching the children to pray);
· [J] started hanging her head and appeared upset. The worker then asked [J] if anyone had asked her to keep a secret or said “don’t tell anyone” and [J] stated “[the father]”. When asked what the secret was, [J] said “I don’t know”, put her head down and was teary.
To my mind it is important to note that by March 2007, J had been in the care of her then foster parents for about three months. Since December 2006, the parties had only been able to spend supervised time with the children, so the suggestion – if made – that the mother had been coaching the children, could not be sustained. Moreover, there was also the observation of the FACS Officers of 19 January 2007 of the father’s interaction with J, involving whispering and kissing and caressing J.
The next disclosure relied upon by the mother was B’s disclosure to the psychologist, Ms O in Darwin. The evidence of that disclosure is a little unsatisfactory, in that it is found in notes of a planning meeting of FACS officers dated 12 October 2007, which in part records as follows:
[Ms O] noted it has taken a long time for [B] to start disclosing. She has disclosed in previous few sessions that she has watched pornographic films with her father while the mother is not present. Also has disclosed that oral sex was performed. She noted that [B] would be nearly physically sick when she was talking about these issues. She noted that [B] also feels huge guilt regarding the abuse, she is afraid of what her mother would think also.
By October 2007, B had been in foster care for about 10 months. Whilst in foster care, she had only had supervised face-to-face contact with the mother and the father, although it is possible that by the time of October 2007 the mother may also have commenced to have phone contact with B.
In a FACS Report to the Darwin Family Matters Court[11] it is recorded at p11:
In later appointments with the psychologist when discussing protective behaviours, [B] disclosed that she would be in the lounge and the father would call her to have a shower. The psychologist described the child as (emotionally) “shutting down” at this time, and [B] said that she felt like vomiting. [B] disclosed to the psychologist that she would pink soap to wash dad “everywhere” and that the mother would be in the lounge room when this occurred. [B] stated that she would wash his arms, legs and private parts, including his penis. She stated that it makes her feel sick when talking about the incidents. The child was concerned that the mother was going to hate her and that the mother would hate the father. [B] was also concerned that the father would get in trouble.
[11]It is annexure 1 to the father’s affidavit filed 29 March 2012.
The next event relied upon by the mother are further disclosures by B on 22 January 2008. By then she had been transferred from the Northern Territory to Queensland, and it was, apparently, her current carer in Queensland who contacted the Department. The Departmental note reads in part as follows:
[The carer] stated that [B] disclosed to her that:
When her mother was in hospital and [J] in the bath, [the father]:
·Had her with him whilst watching a pornographic video;
·she saw him put ice cream on his private parts;
·wacked her on her backside with a dirty magazine.
… had read some of this in NT report but some seem to be new.
…
It needs to be observed that by 22 January 2008, B had been in care for about 13 months, and save for telephone communication with the mother, had not spent any unsupervised time with her.[12]
[12]Interestingly, the father appeared to concede in cross-examination that he had pornographic videos in the Darwin home.
The first occasion when B spent unsupervised time with her mother was on 30 January 2008, on which occasion B made disclosures to her. Part of the material before me included a statement of the mother given to Queensland Police on 7 February 2008.[13] In that statement (which I note is unsigned) there appears the following:
17. I remember the 30th of January 2008. On this date I had my first unsupervised contact with the children since they were put into care. Whilst at a park near the beach at an address known to police [B] said to me “mummy, take me to the toilet please.” I said “ok.” As we walked toward the toiled I asked [B] how she had been and she said “ok.” I said to her “you know if there is anything you ever want to talk to me about I am here for you even though you are in care.”
18. [B] then said “there is something I wanted to tell you and you are not going to be impressed with [the father].”
19. We then both went into the toilet and [B] went into a cubical on her own and closed the door. She then said to me “I hope that what I am about to tell you won’t make you angry at me.”
20. I said “you can tell me what ever. I won’t be angry at you, it is not your fault.”
21. We both then came out of the cubicles and washed our hands and started walking back to the park where my mother and the two younger children were. I put my arm around [B] and she said “[The father] makes me watch sexy movies.” I said “what movies are they bub?” She replied “the porno ones.” She then said “he put chocolate topping on his penis and made me lick it off.” At this point [B] started to cry and I started to cry. I said to [B] “did he really bub?” and she replied, “yes mummy he really did, I don’t lie about this.” I then said “is there anything else you wanted to tell me?” and she said “he also asked me to have sex with him and it hurt.” I asked her “what hurt?” and she went quiet and would not tell me anything.
I then asked [B] “where was mummy when this all happened?” [B] said “it was the night you was in hospital.”
[13]Exhibit 4.
The mother then went on in that statement to identify that the time she was in hospital was in mid 2006 when she was having a major breakdown in Darwin.
At para 25 the mother continued:
25. I then told my mother [MS X] who was with the two younger kids what [B] had said. As I was telling my mother about the ice-cream topping [J] was standing beside us and said “he made me do ice creams too.” [J] then ran off and would not talk to me further about this.
The mother was not cross-examined about whether she had an opportunity, prior to those disclosures, to otherwise discuss the matter with either of the children, or whether she had an opportunity to coach them. Given that it was the first occasion when the children were in her unsupervised care, and they had otherwise been in foster care, it does not seem as though she would have had anything like a reasonable opportunity to have instilled or implanted false memories into the children’s minds. Moreover, her evidence of what B said to her was not challenged in cross-examination.
B was interviewed by Queensland Police on 31 January 2008. A summary of that s 93A interview is contained in para 20 of an affidavit of Mr Y, a Child Safety Officer.[14] Notwithstanding those disclosures, it does not appear as though criminal proceedings commenced against the father, although precisely why is not altogether clear.[15] Nonetheless, from DOCS perspective, sexual abuse by the father was substantiated.[16]
[14]Exhibit 1 p290-291 and see exhibit 1 p355 and 363.
[15]But probably because of a fear that B would not withstand cross-examination – see exhibit 1 p363.
[16]Exhibit 1 p293.
The Family Report writer in this matter, Ms Z, interviewed J on 28 September 2011. In the course of that interview, J described what her father had done to her as “he attacked my vagina” and continued “I feel real sorry for him, he is really sick in the head, he doesn’t mean to. Deep down he is a really good dad. He used to give us toys and a snack. I just don’t love him for that, he’s a good dad and he’s really nice.” She also said “he use to hurt me when I was little, stuck toys up my vagina, sharp things” but was apologetic and continued “I really haven’t really got a good memory, please forgive me if I am lying. It was a long time ago. It hurts… maybe why I am having bladder infections.”
Ms Z also interviewed B on two occasions. At para 50 of the Family Report dated 3 November 2011 Ms Z records:
[B] said that she and her siblings were in foster care “because [the father] hurt us. Making him lick his thing.” She said that she was 7 years at the time and “that’s all I remember. He was watching a video of sex and he told me to come and watch. He gave me a cigarette. He put chocolate stuff on it, on his thing – his penis.” She faltered and blurted out “when I saw him [today] I felt really … he was in the waiting room. Oh my gosh, I thought I’d never see him again.” [B] went on to tell me that when the family were in Darwin [the father] had threatened to kill her mother with a gun and “he used to smack me with his gun magazine.” Regarding the sexual abuse [B] said that [the father] “told me not to tell.”
Later at para 52 Ms Z recorded that “[B] was adamant that she did not want to see [the father]” and “she wanted the Judge to know that he has not right to do that to anybody and he doesn’t deserve to get away with it.”
The evidence of risk of emotional abuse
In her two reports, Ms Z was critical of the father’s overly demonstrative interaction with the children. At paras 54 to 57 of her report of 3 November 2011, Ms Z noted how the father kept hold of both J and N, “kissing them and repeating that he loved them and missed them.” Later on “he drew them back into his embrace and continued to touch and hug them as they conversed.” Notwithstanding Ms Z’s suggestion that he ought use the time to play, “[the father] continued to hug [J] and to kiss [N], holding his face in his hands and each time the children moved away to explore the toys or help themselves to the box of chocolates and strawberries, he moved over on his knees closer to them and hugged them further.” This led to Ms Z intervening and again directing him to cease constantly hugging the children, and to play with them instead.
At the time of her second interview, Ms Z was more content with the type of interaction which she observed between the father and the children. However at paras 74 to 77 of her second Family Report, she said as follows:
74. In my opinion at her young age and with her additional developmental issues such as her ASD, [J] remains quite vulnerable to emotional abuse, at the least, by her father. She does not know how to deal with unwanted and unsolicited touches by her father and does not have the confidence or capacity to self protect. She needs to feel safe and to know that trusted adults are in charge and ensuring her safety if she spends any time with her father in the future.
75. In my earlier Family Report I assessed that in his interactions with [J] and [N], [the father] had lacked insight into the impact of his behaviour upon the children, that his behaviour was self-focused and self-fulfilling and highly inappropriate, and that he displayed a lack of inhibition and poor boundary settings. I observed [the father] in the most recent interactions with the children to be careful not to initiate physical contact with them, and my initial impression was that [the father] may have genuinely taken on board the feed-back I had given to him in the first Family Report interview, gained some valuable insight into the needs of the children, and adjusted his behaviour accordingly.
76. However in his most recent affidavit filed on 29 March 2012 [the father] made this statement regarding the Family Court observation in September 2011 “I found it deplorable that during that contact at the Court that the interviewer stated she thought my interaction was inappropriate. I believe she was completely unable to identify with the fact that I had not seen these children for almost one year and I wanted to show them as much love as possible.” In my opinion by this statement [the father] clearly demonstrated his continuing focus on his own needs and that he had not gained any new awareness of the impact of his actions upon the children or insight to their needs. It is my considered opinion that [the father] only curtailed his otherwise excessive psychical interaction with the children during his brief interactions with them because he was being observed for the purpose of the family report process. Therefore I am not confident that he would similarly temper his behaviour if granted any unsupervised time with the children.
77. I also note from the subpoenaed Child Safety material that [the father] was described during some supervised “access” between [J] and [N] in 2008 as “excessive” in his kissing and touching of the children.
Particularly relevant in this regard are the events which occurred at a supervised contact centre in Town L known as “R Contact Centre” on 19 November 2011. In the Centre’s Incident Report of 19 November 2011, the following is said to be the relevant description of events:
[The father] was sitting on the lounge reading a book to [J]. [N] came over and sat on [the father’s] lap, [the father] began to squeeze and kiss [N], [N] got up, at this time I noticed that [the father] had a very large erection, [the father] crossed his legs. I immediately redirected [N] to another supervisor.
The person who prepared that particular aspect of the report was identified as Ms AB. She gave evidence before me. Whilst there was some elaboration of the detail in the Incident Report, for instance there was reference to N bouncing up and down on the father’s lap, otherwise her evidence-in-chief was in accordance with the Incident Report. She was adamant that what she observed was an erection within the father’s pants. She described it as laying across from the middle of his body to the right hand side, and that upon her observing it, she and the father made eye contact which she understood to be an acknowledgment by him, in consequence of which he crossed his right leg over his left leg to hide the erection. She explained that it was only ten or fifteen minutes after the event that she completed her report, although the accuracy of that became a little unclear during the course of cross-examination, in that she appeared to concede that the visit concluded at noon, however the Incident Report is noted as being 11:10am.
Under cross-examination by the father, Ms AB denied that what she observed could have simply been a large fold in his trousers, on the grounds that it did not look like one. She described it as bulging and tight.
On 2 December 2011 BB Area Contact Centre sent a letter to both the mother and the father, albeit they were in different terms.[17] The father’s letter read:
[17] The father’s letter is at p468 of exhibit 1; the mother’s is at p367.
Please be advised that we have cancelled supervised contact sessions for your family at [R Contact Centre Town L] for the following reasons:
·During supervised contact on 19 November 2011, you were observed:
·Inappropriately squeezing [N], caressing and patting [N] on his back;
·Inappropriately kissing [N] on his face;
·Displaying an inappropriate sexual response to [N] sitting on your lap.
We will not consider your family for inclusion into our programs at any time in the future. This will include services provided at [CC Contact Centre Town DD], [CC Contact Centre Town EE], [CC Contact Centre Town FF] and [R Contact Centre Town L].
We will enter into no further correspondence on this matter, and, if you, or a person on your behalf, approach, intimidate or harass either in person or via any communication method, the Centre, staff or clients of the service, we will have no option but to consider this harassment on your part and we will report the same to police.
Also in evidence were the telephone records of the Centre. Although prior to 19 November the father had been in communication with the Centre, there is no telephone call or email or any contact recorded in that log after 16 November.
In his evidence, the father denied strongly that he had inappropriately touched either child although he conceded that he ran his fingers through their hair and patted them on the back. He further accepted that he kissed them, but it was on the forehead or cheeks. He denied that he kissed either child on the lips. He denied that at any time he had an erection on 19 November.
In his affidavit of 29 March 2012 at p7, he said that he was told by the relevant Centre workers that the contact time had gone “very well”. He continued:
There was absolutely no negative feed-back in regards to the contact, nor were concerns raised of any kind while contact was taking place. In fact, future contacts were arranged and activities to do were discussed.
He went on to accept that he had patted N on the back and kissed both children on the face, but denied that there was anything inappropriate about that.
Whilst Ms AB, one of the workers who was supervising the father on that occasion, expressly disavowed any view that, in her opinion, there was “inappropriate” squeezing, caressing, patting or kissing of N, what is telling is that Ms Z’s suspicions, namely that the father had not learnt anything from her observations in the first Family Report as to the appropriateness of this kind of contact, were well founded. It also confirms the view that the father was expressly curtailing his behaviour in the observation phase of her interview in January 2013, and that that was not the way in which he would normally conduct himself in even supervised contact with the children.
Under cross-examination, Ms Z expressed the view that the father’s priorities in interacting with the children were self-focused, in that it was about his needs and his perceptions of reward, and that he did not prioritise the children’s needs over his own. Particularly she was of the view that during her observations, the father was focused upon lavishing affection upon them, which the children at that stage did not need. She said that they needed to play, and his lavishing attention upon them was more upon his needs than theirs. Later she expressed the view that he appeared to gain pleasure or emotional satisfaction from that intimate contact with them, which was particularly disturbing because the children needed to feel that they can have relationships with safe adults without feeling that their personal boundaries are compromised. The children’s boundaries she said were not being taken into consideration by the father.
I am satisfied, on the material before me, that Ms Z’s concerns are well founded. The father seems incapable of prioritising the children’s needs over his own. He is self-focused. That is particularly troubling in the case of J, who even on the father’s view has been the victim of childhood sexual abuse, and has three serious medical issues, to say nothing of the disrupted care arrangements which she has had for virtually all of her life.
Some further support for this conclusion can be found in the report of a psychologist, Dr GG, who examined the father. In his affidavit filed 31 July 2012 at para 60, Mr GG said in relation to the father’s scoring on a particular test:
This sort of pattern is suggestive of an individual who is aware of their short comings, but wishes to appear publically acceptable. However the .. score was not sufficiently high to reliably indicate that [the father] was “faking good.”
Did the father sexually assault B and/or J, or is he an unacceptable risk of sexual abuse or emotional abuse?
The mother and the Independent Children's Lawyer urged me to make a finding of actual sexual abuse by the father. Whilst, as I shall shortly discuss, the father expressed a firm belief that J had been sexually abused by someone (but not him) he did not so comment in relation to sexual abuse of B. Rather he pointed to the fact that it had taken B over a year from being first taken into foster care to make any allegations against him, and that the detail of those allegations evolved over time, with some inconsistency between them, for instance because in one report there was reference to ice cream, and in another report there was reference to chocolate topping. However none of these really address the fact that there was a seemingly spontaneous disclosure by B of sexual assault upon her by the father when she was 7 years of age, and that she has continued to make those assertions in fundamentally unchanged terms, even as recently as January 2013 to Ms Z.
As to J, the father conceded before me that the specificity of B’s allegations, first made when she was in care and only 4 years of age, compel the conclusion that she has indeed been sexually abused. However the father fervently denied that it was him who was the perpetrator, and inferred that it must have been some other adult to whom she had been exposed, perhaps one of her foster carers.
J first disclosed approximately 4 months after she had gone into foster care. She specifically disclosed that the perpetrator of the events, which she clearly had experienced, was “[the father’s given name].” Whilst there are aspects of her allegations at that time which are perplexing, for instance the reference to playing football and performing star jumps in the shower, there can be little doubt that she was recounting to her carer at the time she first disclosed that she had been showering with her father and had been manipulating his genitals. I do not think that there is any real factual basis, other than the theoretical possibility of the carer assaulting her, combined with the father’s denials, to suggest that a carer or some other adult male was, in J’s mind at the time she made the disclosures, the perpetrator.
Although the father’s material did refer to the mother’s histrionic personality, asserted a past pattern of behaviour by her of making false allegations against her partners or former partners, and did point to some suspicion on the part of investigators over the years that the mother may have been coaching the children to make allegations, I do not think that in the case of the disclosures by both B and J, arguments of coaching hold much sway. Particularly in the case of J, when she first disclosed, the mother and father were still together in their relationship, and whilst the mother may have been angry at perceived infidelities by the father, there seems little motive for her to plant false accusations in her children’s minds, and there is little, if any, evidence of her having the opportunity to do so by April 2007. Therefore, while I take these arguments into account, I do not give them much weight.
Of course inevitably the children’s evidence is second or third hand, and the father has not had any opportunity to challenge that evidence directly. Further, the father has not been charged with any offence arising out of these allegations. The accusations are very serious, and therefore would require me to be persuaded by relevantly cogent evidence to conclude, on the balance of probabilities, that the father abused either child. That said, there is, unlike in many cases, a degree of specificity to the time, place and content of the alleged abuse, particularly as regards B’s accusations. Nonetheless, particularly given the absence of any opportunity to the father to directly challenge the children’s version of events, or explore the possibility of alternative perpetrators in cross-examination, I am not persuaded on the balance of probabilities that in fact the assaults occurred.
However that is not the end of the matter. The alternative limb of the inquiry is as to whether or not the risk of the father sexually assaulting the children is an unacceptable one.
Given the content and circumstances surrounding the disclosures by both B and J, it could not be reasonably argued that there is no risk the father may sexually assault the children. The allegations were, for the most part, made when the children were in foster care, contain considerable detail, specifically identify the father by name, and further, suggest that the events were opportunistic in nature, given that they occurred when the mother was hospitalised or in another room. Moreover, some of the content of the disclosures – for instance the conceded poor memory on occasions – does not suggest that this is a coached disclosure, or a false implanted memory. There is a real risk associated with the father.
The question then is whether the risk is an unacceptable one. The gravity of harm arising from sexual assault of a child is high. The emotional consequences can be considerable and long lived. If sexually assaulted, the risk of harm being visited on the child is high. Given the opportunistic nature of the alleged past assaults, the only way to minimise the risk would be by strict supervision. I do take into account that the alleged events the subject of the disclosures occurred now some 7 years ago, at which time the father’s domestic situation appeared to be in considerable turmoil. However the father denies any wrong doing on his part, and denies that he represents any risk to the children.
There are two additional matters relevant to gauging the magnitude of the risk which the father presents to the children. The first is the asserted risk which it is said the father poses to the children of emotional harm, largely because of poor boundary setting and prioritisation of his needs over the children’s. To my mind that is also relevant to an extent in determining the risk of sexual abuse which the father poses to at least J. Particularly, I am troubled by what Ms Z described as the wholly inappropriate physical interaction which she observed with the father on the occasion of the first Family Report with both children, which involved excessively kissing them, caressing them, and pursing them with a view to lavishing them with such affection. As reported at paras 53 to 57 of that first Family Report, Ms Z had to intervene twice to try and dissuade the father from such behaviour. Even his excuse recited at para 59 of that report is wholly self-focused.
Further, there is the constant theme of the father’s interaction with J of bringing her what might be thought to be age inappropriate gifts, including flowers, chocolates and perfume. In the first Family Report consultations, when Ms Z asked why he had chosen to buy flowers for J (whom he had not then seen for about a year) he said in substance that he had always done so as it was part of their ritual and nice for girls to receive flowers. He also said it was “to wow her and make up for lost time.” He denied that anyone else had previously made any adverse comment regarding his choice of flowers for J.
However as Ms Z noted at para 12 of the second Family Report, that latter denial was untrue. In fact DOCS officers in 2010 had advised the father to bring age appropriate gifts for J during supervised time with her, not flowers and perfume. Further, the relevant case review also noted “he has also been advised that it is not appropriate for [J] to sit on his knee, or for him to tickle her on her bare skin, with particular reference to her midriff area.”
It is not only flowers and perfume which have been part of the father’s repertoire of lavishing affection upon J, but he also has made a gift to her on a supervised visit of an adult women’s handbag[18] and chocolate. There is something disturbingly adult about these choice of gifts. As Ms Z said in para 68 of her first Family Report in the context of the father’s desire to “wow” J, it is indeed something one might expect a man to say about a girlfriend, but not a little girl.
[18]See exhibit 1 p365.
Whilst part of the criticism that is being made of the father for such physical contact is a lack of insight into the effect it is likely to have on J (whom it will be remembered the father concedes has been sexually assaulted by someone) the preoccupation with J, particularly excessive physical affection being demonstrated to her, has now been of long standing.
The second matter is also relevant to the risk of emotional abuse which the father is said to present to the children, and that is said to arise from his own personality characteristics.
In his report annexed to his affidavit filed 31 July 2012, Dr GG, a forensic psychologist, at para 113 summarised his assessment of the father as follows:
“[The father] has engaged in behaviour over the years that is characteristic of psychopathic individuals, and his profiles on personality tools appear to reflect the component traits of psychopathy to some degree. Of particular note is his seemingly superficial interpersonal engagement style, his oft-noted lack of emotionality and the absence of empathetic reactions to his children’s experiences of family separation and abuse (regardless of the alleged perpetrator). [The father] also displays a pattern of failing to take responsibility for what has happened, however blames his ex-wife extensively, highlighting her personality vulnerabilities and ridiculing her borderline IQ in emails to FACS or CSS staff..”
At para 68 of the second Family Report, Ms Z, having recited the above extract of Dr GG’s report, continued:
Consistent with Dr [GG’s] evaluation above, Dr [Q] [a psychiatrist] assessed [the father] in 2009 with some “obsessive compulsive and narcissistic personality traits” and Dr [HH] in 2008 also raised concerns to Child Safety about the “incongruence” of [the father] scores on various psychological tests including a “volatile mix” of personality traits.” These psychiatric/psychological evaluations all suggest that [the father] has a number of personality vulnerabilities which would significantly limit his capacity to see beyond his own needs and would limit his insight into an ability to focus on the needs of the children. Based on these evaluations, the other extensive information contained in the subpoenaed material and on my own interviews and observations, I am of the opinion that the risk of harm to the children and [the father] unsupervised care remains high.
This latter opinion was a re-statement of what she had concluded in her first Family Report at para 69 as follows:
In my opinion [the father] lacked insight into the high level of physical contact he displayed towards the children in observation and appeared to interpret the children’s lack of resistance as a green light to constantly touch them to the point of perusing them when they moved away. He displayed a high personal need to touch, hug and kiss them, apparently oblivious to the reactions to the children, and a lack of inhibition and poor boundary setting, despite two separate requests to stop the excessive physical contact. In my opinion his behaviour was self-focused and self-fulfilling and highly inappropriate. On the basis of [the father] behaviour towards the children and that two Child Protection Agencies have substantiated sexual abuse, I assess the risk of further harm to these children as high. At this stage if [the father] is to spend further time with the children I believe her requires close supervision with clear guidelines and limits as to the nature of his engagement with the children.
In light of the father’s subsequent conduct at R Contact Centre, that latter recommendation for supervised time was abandoned by Ms Z at para 81 of her second Family Report, as in her opinion even close supervision could not guarantee protection from the father’s inappropriate behaviour.
Whilst, as I will shortly discuss, I am not able to conclude on the balance of probabilities that the father did display some sexual arousal on 19 November at R Contact Centre, nonetheless, weighing all these matters, I am satisfied on the balance of probabilities, and notwithstanding the gravity of the nature of the matters under consideration, that the father presents an unacceptable risk of sexual abuse to J.
On the other hand, I am not satisfied on the balance of probabilities, particularly given the gravity of the nature of the allegations, that the father presents an unacceptable risk of sexual abuse to N. Whilst there is the evidence of the alleged inappropriate sexual response on the part of the father on 19 November 2011 when N was bouncing on his lap, I am left in some considerable doubt as to whether or not in fact the father did become sexually aroused. It is wholly dependent upon Ms AB’s opinion of what she saw in the father’s trousers. That does not persuade me that he then had an erection. It is only that incident, perhaps coupled with the allegations of sexual abuse of both B and J, which would suggest that he poses any form of risk of sexual harm to N. Whilst I accept that there is a risk associated with the father in relation to N, I am not persuaded that it is an unacceptable one.
In discussing the risk of sexual abuse which the father poses to the children, I have already set out at length Ms Z’s opinion about the emotional risks to the children which his prioritisation of his own needs above the children’s, together with poor boundary setting, poses. I accept those opinions. It is particularly troubling in the case of J that he appears to on the one hand, accept that she is being the victim of sexual abuse, but on the other hand, excessively demonstrate inappropriate behaviour towards her. I note that the behaviour is said to have distressed her. At para 40 of Ms Z’s second Family Report she records the mother having told her that after the last Family Report observations J had said to the mother “he kept kissing my face and I don’t like it.”
As I have previously observed, there is no clear bright line between the risk of sexual abuse and the risk of emotional abuse which the father is said to pose. They are to an extent overlapping and inter-related.
I am persuaded on the balance of probabilities, notwithstanding the relative gravity of the allegation, that the father also poses an unacceptable risk of emotional harm to both children, although whether it be properly expressed as emotional harm or some other allied species of harm is an academic point. The gravamen of the complaint is that his needs take priority over those of others, and he has poor boundary setting with both children. Bluntly, he cannot be trusted to appropriately interact with the children. It is the satisfaction – perhaps gratification – of his needs not theirs, that motivates his interaction with them.
Is the father an unacceptable risk of physical abuse?
The allegations of physical abuse commenced in 2005 when the parties were living in Town C, when DOCS received a notification that the father had “flogged 2 year old [B] and had held her head under water for swimming lessons.”[19] From the material before me, it appears as though DOCS may also have held concerns at that time that the father had commenced physically to abuse J as well. For reasons which are unclear on the material before me, in fact the DOCS investigation did not then proceed.
[19]Exhibit 1 p144.
The next episode which precipitated contact with DOCS appears to be that recounted in para 32 of the mother’s affidavit filed 28 March 2012 as follows:
I recall the Father would frequently be physically abusive towards my oldest child, [B]. I recall an incident when [B] was approximately 3 or 4 years of age, she had grabbed the mop and accidentally hit the Father in the head. I recall he became quickly aggravated, and he grabbed her by the arm, rolled up a gun magazine, and then belted her with the magazine around the body continually. I recall it took both myself and the Father’s mother to pull the Father off [B] and to stop him from hitting her. I recall at the time [B] sustained red marks on her back, legs and also bruising to her body as a result of this incident.
It appears as though the mother has, from time to time been in the habit of keeping a diary. Her entry for Wednesday 7 December 2005 reads as follows:
.. I heard a knock at the door I went to the door and saw 2 uniformed policemen I said can I help you and they told me that someone saw my husband hit [B] on top of the head with a newspaper at 6:30am this morning. Which made me think immediately back to yesterday’s threat from … and I instantly knew it was his and mum’s doing. So I sent mum a message then rang [the father] and told him he was furious then I rang … and she help calm me down. But still felt like mum had took my heart out jumped on it and put it back in. Betrayed and used was my feelings.
In the entry for the following day in her diary, the mother continued, seemingly by reference to the police attendance:
.. I feel so betrayed still and hurt about the incident with the police yesterday. How dare anyone make these sorts of false accusations against my loving husband. I think if people took the time of day to get to know [the father] they would realise that he wouldn’t hurt a fly and that he loves all of our children with all his heart and would never harm them at all.
When pressed in her cross-examination by the father as to what was “false” about the allegation, the mother said that the falsity was only that “the incident occurred at 6:30am in the morning with a newspaper.” That is, frankly, ludicrous. She was also asked what she told the police in relation to the incident, to which her answer was that she told them nothing. She explained this was because she was scared as to what the father’s response would be if she advised the police of what had in fact occurred. Her diary does not so read.
The father denied that any such episode involving B had occurred in Town C, or indeed elsewhere.
In the course of interviewing B for the purposes of preparing the first Family Report, Ms Z recorded[20] that when the family were in Darwin the father had threatened to kill her mother with a gun and “he used to smack me with his gun magazine.”
[20]Para 50 of the first Family Report.
There are then the events which are said to have occurred during the father spending unsupervised time with N in Town L in 2010. At para 59 of the mother’s affidavit filed 28 March 2012 the mother said:
..I recall on the last unsupervised visit the father had with [N], the child returned home and was acting very withdrawn and quiet. I recall arranging a bath for him and when I went to wash his hair, as I poured water over his head, he began screaming and he got out of the bath and ran through the house to my partner [Mr Brennan]. I recall following [N] and asked him what was wrong and he said “my daddy tried to drown me in the pool today.” He told me that the father had pushed him under the water and every time he resurfaced, the father would push him under again. [N] also told me that the father had jammed his head in the glove box of the car and he shut the door on his hear “really hard.” I recall he also told me that the father’s now wife, [Ms P], has also hit [N] over the head with her handbag.
Ms Z also interviewed N. In his interview on 28 September 2011, N said in relation to his father, “His name [the father’s given name], because it makes me scared, because he shoved my head in the glove box where you put stuff in – it opens and shuts – in the car. Also he drowned me in the pool. He took me to Hungry Jacks to have something to eat. He bought me a toy and some socks.” He also said that it was OK to see his father if someone was there “because we are not allowed to by ourselves cos he’ll hurt us.”
Both the mother and her partner were cross-examined about the circumstances which surrounded the alleged disclosures of physical abuse by N. It appears as though they agreed that they were first made during a bathing session of N, but there was some conflict between the mother and her partner as to the time of day that it was made, and the precise circumstances surrounding the disclosure. Ultimately both the mother and her the partner conceded in cross-examination that it was possible that N had made up the allegation, in part because he was prone to fibbing on occasions.
The father specifically relied upon the fact that there was no sign of any physical injury to N.
This evidence of physical abuse of N is very vague. Whilst I accept that the allegations were of sufficient gravity to apparently cause DOCS to suspend unsupervised time between the father and N, I am not so persuaded on the basis of those allegations alone that the father poses an unacceptable risk of physical harm to N.
There is then his alleged physical abuse of B to consider, however ultimately, taking all of that material even at its highest, I am not persuaded that the father presents an unacceptable risk of physical harm to N.
There does not appear to be any suggestion that the father has ever physically abused J; to the contrary, the allegation is that he has been inappropriately affectionate towards her. To the extent that there may have been inappropriate levels of discipline applied to J in Darwin, it appears as though the mother rather than the father was the perpetrator. Whilst I do take into account the allegations of physical abuse of B (and indeed N), the evidence is not sufficient to persuade me that the father represents a risk of physical abuse to J.
In considering the risk of physical abuse which the father poses to the children, I have not overlooked the considerable body of allegations which the mother makes against the father of domestic violence and rape. Ultimately, it is not necessary for me to determine the full extent of any such violence: plainly there was extensive domestic violence in the parties’ household when they cohabited in Darwin, and little is to be served by a minute examination of the mother’s allegations of rape as well, as very serious as such allegations are. Suffice to say that the father denied them, and absent some corroborative evidence, given the grave nature of the allegations, there would need to be something more than the mother’s simple allegations for me to be persuaded on the balance of probabilities that any rape occurred.
S 60CC(3)(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
J
Ms Z interviewed J on 28 September 2011, and subsequently on 9 January 2013. Features of the 28 September 2011 interview include:
·Prior to the interview commencing, J had been very distressed at the Child Care room, expressing anxiety and mixed feelings about the possibility of seeing the father;
·Later she told Ms Z conflicting wishes, including that she did not know whether she wanted to see her father or not, and then later that she was “desperate to see my dad, my real dad”;
·At one point she said “I was worried dad might be angry. Last night I didn’t want to see him. I was walking into here – when I sawed him I am waving at him. I started crying – I was really scared. I was worried what he did to me when I was really little. I don’t want him to do it again”;
In relation to the 9 January 2013 interview, Ms Z recorded:
·J said “if this is the last time I have to see him, I say that I do want to see him” but then continued “I still want to see him if it’s not the last time”;
·J told Ms Z that the father “used to take [N] on days and I got jealous. [N] got badly hurt and we don’t see him anymore. I like supervised. If it wasn’t I would be freaking out. Sometimes I get a little nervous and chew my fingernails off”;
·J also disclosed “I haven’t seen him for a long time. We have been having normal days, then I found out that I had to come back to Court and see our father. I ran to my bedroom and shut the door and I was crying. I don’t want to see him. There are things in life we don’t want to do but we have to do. Like make my bed”;
·When Ms Z asked J how she might feel if a Judge decided that she did not have to see her father J replied that she thought she would feel “safer” but repeatedly said that she worried about her father getting upset, adding “he will probably get angry at me. I don’t really know how to tell him I don’t want to see him. It’s so confusing”;
·Ultimately at the close of the one-on-one interview with Ms Z, J decided that she would see the father, as long as Ms Z was supervising it.
It can therefore be seen that J experiences real ambivalence about seeing her father, and to the extent that she wishes so to do, seems to be motivated by a mix of curiosity and a desire not to anger him.
N
As with J, N has been interviewed twice by Ms Z. In the first interview, his first utterance to Ms Z was “where’s my daddy? I want to see my daddy.” Other features of that interview included:
·N expressed confused feelings about his father, such as telling her that he did not like “his name, [the father’s given name], because it makes me scared, because he shoved my head in the glove box where you put stuff in – it opens and shuts – in the car. Also he drowned me in the pool. He also took me to Hungry Jacks to have something to eat. He bought me a toy and socks;”
·Whilst N indicated that he was happy to see the father on the interview day and at the contact centre in Town L, he shook his head vehemently at the idea of going to his father’s house. Specifically he said that it was OK to see his father if someone else was there “but we are not allowed to by ourselves cos he’ll hurt us.”
In the second interview he expressed a strong desire to see the father and described that event as “awesome.”
It is plain that N has a strong desire to see, and experience a relationship with, his father, albeit understandably he wishes to feel safe when doing so. Notwithstanding his tender years, I think those wishes should be given some weight.
S 60CC(3)(b): The nature of the relationship of the child with:
each of the child's parents; and
other persons (including any grandparent or other relative of the child)
Plainly both children the subject of these proceedings have a good relationship with their mother. It is really the nature of the relationship which the children have with their father which is under the microscope.
The father has been, save for relatively brief, intermittent periods of contact at Town L in 2010 and 2011, wholly absent from their lives for a number of years. It could not really be said that the children have anything other than vague recollections of their relationship with the father, albeit in the case of N, he nonetheless has a positive view of him.
S.60CC(3)(c): The extent to which each of the child's parents has taken, or failed to take, the opportunity:
to participate in making decisions about major long-term issues in relation to the child; and
to spend time with the child; and
to communicate with the child
Leaving aside the period of time when the children were in care, the mother has been the primary carer for these children for their lives. Even when they were in care, she made efforts to spend time with them and to communicate with them.
The same cannot be said for the father. Although inevitably the allegations of sexual abuse would have impacted upon him being able to spend time or communicate with the children when they were in State and foster care, it does not appear as though he made any effort after April 2007 to do so, although once he became aware that the children were living again in Queensland, he then expressed some desire to again be part of their lives.
The reality is, however, that the father has been out of these children’s lives for quite some time, except as an adjunct to these proceedings.
S 60CC(3)(ca): The extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child
The mother has been wholly responsible for the cost of raising the children whilst they have been in her care. It does not appear as though the father has ever made any contribution to the costs of maintaining the children after they left his care in Darwin in December 2006. Interestingly there is an insight into the father’s attitude to maintaining the children contained in the material in an email which he sent to a DOCS worker on 18 November 2009[21] in which he was clearly annoyed about child support being potentially levied against him. In that email he said:
Because if I DO have to pay [child support], this will become a Family court thing and I can apply for share care.
[21]Part of annexure 7 to his affidavit filed 29 March 2012.
That seems to be inconsistent with any desire on the father to contribute to the cost of raising the children without some commensurate benefit being derived by him.
S 60CC(3)(d): The likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
either of his or her parents; or
any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
Here there are different considerations at play in relation to J on the one hand, and N on the other. I have already remarked on the mother’s unchallenged evidence that J requires structure and routine, and becomes very upset if that structure or routine is affected. It is therefore likely that any change in her circumstances would have a dramatic impact upon her, and the greater the change, the more dramatic the effect.
In the context of the father’s proposed orders for holiday time being spent with the children, it could reasonably be expected that would have a very major effect upon J, because it would see her not based in her home and particularly her bedroom, and not with her mother, stepfather and other siblings, other than perhaps N. It would likely see her in a strange home, with other strangers about her. That is likely to be highly unsettling to her and general adverse, but otherwise unpredictable, consequences.
N on the other hand is likely to be more adaptable to such changes, and such considerations do not loom as large a factor when considering him.
S 60CC(3)(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
This is a live issue in this case. The father resides in Town C west of Brisbane; the mother resides in Town FF north of Brisbane. The distance between them is considerable. This was acknowledged by the father, in that he only contemplated block holiday time being spent with the children (in the event that unsupervised time was ordered) but otherwise identified that if supervised time were ordered, it would need to be at a location relatively proximate to the mother. The difficulty was, of course, that the main – perhaps only – provider of Contact Centre supervision in the Town L/BB Area/Town EE region had refused to continue to supervise the father’s time with the children, and no other Contact Centre was, at the time of trial, able to be identified. However after the trial the father filed an affidavit in which he identified that there was now a Contact Centre which was available, namely the KK Contact Centre which appears to be located at Town JJ, some little distance north west of Brisbane. However as I shall shortly discuss, there would nonetheless be difficulties and substantial inconvenience and cost in the mother transporting one or more children from Town FF to Town JJ, particularly considering she has the care of five children in all.
S.60CC(3)(f): The capacity of:
each of the child's parents; and
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
Plainly serious concerns attach to the capacity of both the mother and the father in relation to their provision for the needs of the children. That arises at least from a consideration of the events when the parties were living in Darwin, and all the children were removed from their care. It will be appreciated that the children were not initially removed from care because of any suggestion of risk of sexual abuse, but rather because of the domestic circumstances generally. That said, however, this is not a competition between the mother and father as to who should have the primary care of the children: the father accepts that the primary care should remain with the mother. Therefore it is the father’s capacity to provide for the needs of the children on any unsupervised time – particularly block holiday time – which needs to be considered.
I have previously discussed the evidence relevant to this issue when considering whether the father represents an unacceptable risk of harm to the children. Whilst there is no reason to doubt that the father would be able to provide for the physical needs of the children, and perhaps their intellectual needs, on the material before me, I am not satisfied that he has adequate capacity to provide for their emotional needs.
S.60CC(3)(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
This is not relevant in this case.
S.60CC(3)(h): If the child is an Aboriginal child or a Torres Strait Islander child:
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
the likely impact any proposed parenting order under this Part will have on that right
This is not relevant in this case.
S.60CC(3)(i): The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents
Whilst this matter is relevant in this case, it has been sufficiently addressed already in my reasons.
S.60CC(3)(j) Any family violence involving the child or a member of the child’s family
Plainly there has been family violence involving both of the children and other members of their family. Further, there are the allegations of excessive corporal punishment being visited upon B in Town C, and the father having assaulted N by ramming his head into a glove box.
S 60CC(3)(k): If a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:
the nature of the order;
the circumstances in which the order was made;
any evidence admitted in proceedings for the order;
any findings made by the court in, or in proceedings for, the order;
any other relevant matter
The only Family Violence Order that has ever applied between the parties was a temporary protection order made on 23 July 2007 in the Town L Magistrates Court, on application by the mother. On advice, she withdrew the application prior to the final hearing. There is little inference that can be drawn from that either way. In any event, plainly this was a relationship which was marred by domestic violence, which whilst the parties were living in Darwin, was both regular, and on occasion, extreme.
S 60CC(3)(l) Whether it be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
Plainly it would be preferable not to have ongoing litigation between these parties. However as at the time of trial, the father had been unable to locate an appropriate Contact Centre to supervise his time with the children, but subsequently identified one which is apparently based at Town JJ. As will later be seen, I do not think that Town JJ is a reasonable location to require the mother to take the children to in order to facilitate them spending time with the father. However it may be the case, if the father can in the future identify an appropriate contact centre to supervise his time with the children, that further litigation may ensue.
S 60CC(3)(m) Any other fact or circumstance that the Court thinks relevant
I cannot identify any other relevant fact or circumstance in this case.
PARENTAL RESPONSIBILITY
The first question I need to address is whether or not the s 61DA(1) presumption applies or is rebutted. Here there are clearly reasonable grounds to believe that abuse or family violence have occurred, and therefore the presumption does not arise. The question then becomes what orders in relation to parental responsibility are in the children’s best interests.
I have already observed that the parties have not been able to have a civil conversation in about seven years. There is no basis to conclude that the parties would have any prospect of discharging their obligations under s 65DAC.
Further, the father has not lived with any of the children since December 2006, being in excess of some seven years ago. J was then three years of age and N one year old. For an extensive period of time he did not see them at all. Once the children were relocated to Queensland, he commenced upon a course of intermittent contact for relatively short periods, progressing to unsupervised contact in the case of N, but again for relatively short periods.
Whilst the father gave evidence of some limited attempts to inform himself of the children’s situation, including contacting their school on one occasion, and reading in relation to their medical conditions, these do not appear to have borne much, if any, result. Other than in the course of Family Report interviews, he has not seen either child since November 2011, nor had any communication with them. Beyond what he may have gleaned from the limited contact that he has had with them over the years, he knows little about their day to day lives, their routines, their interests or hobbies. Whilst I accept that he no doubt loves both of them, it is difficult to see what insight he could bring to bear to assist in making decisions in relation to matters such as education, religion and health of the children.
The father points to the mother having re-established some form of communication with B’s father, to the point where B is now able to, and does, spend time with him, as an illustration of the possibility that the same may occur between the mother and the father. However not only as I understand it, was there no allegation raised against B’s father of sexual abuse against her, but inevitably the personalities of B’s father and the father in this case are different. I do not think it reasonable to conclude that, merely because the mother has been able to reconcile to a degree with the father of one child, that it follows that she will be able to reconcile to a similar degree, or at all, with the father.
In my view the best interests of the children require the mother to have sole parental responsibility for them.
WITH WHOM SHOULD THE CHILDREN LIVE?
The father does not seek any order displacing the current arrangements, where the children live with the mother. Plainly the continuation of their current situation is in their best interests, and there will be an order that they live with the mother.
WHAT TIME SHOULD THE CHILDREN SPEND WITH THE FATHER?
Holiday time
I have determined that the father presents an unacceptable risk of sexual abuse to J. That therefore precludes the prospect of him spending holiday time with her, at least on a practical level. I have further concluded that the father presents as a risk of emotional harm to both children, in large part because he does not have insight into, and hence the capacity to provide for, the emotional needs of either child. To that extent also presents as an unacceptable risk to both children. That weighs against him spending any unsupervised time with N as well, and certainly precludes there being any block period of holiday time. Further, there is the complication that in the past, when N was spending time with the father but J was not, she became jealous.[22] That is likely to be the result if N were to spend holiday time with the father, but she did not. Whilst, on one view, appeasing J’s concerns at the expense of N might seem contrary to his best interests, it is clearly in N’s best interests to have a good sibling relationship with J. Moreover, there is the risk that J would perceive that N spending holiday time with his father would be a form of punishment for her disclosures of sexual abuse. That cannot be in either N’s or J’s best interests.
[22]See second Family Report para 47.
Inevitably the absence of any block time being spent by the children with the father will impact upon the quality of the relationship which they experience with him. However their safety must be given appropriate weight. In my view, it is not in either child’s best interests to spend block holiday time with the father.
Supervised time
In the alternative to block holiday time, the father sought orders for the children to spend time with him at a Contact Centre. The difficulty at the time of trial was that the only provider of supervised contact at a location sufficiently proximate to where the mother lives had declined to continue to supervise the father spending time with the children. During the course of the trial, I urged the father to try and locate an alternative provider because otherwise Contact Centre supervision was not a practical solution. As I have indicated earlier in these reasons, he later identified a potential supervisor at Town JJ, however I am not persuaded that Town JJ is sufficiently proximate to where the mother lives in Town V to be a feasible option. It would require the mother to drive, on a round trip, nearly 500km presumably taking well over 6 hours. Even with “ordinary needs” children that would be an ordeal – with two ADHD children it would be monumental. Moreover it would require the mother to have a good and roadworthy car – as to which there is no evidence – and the capacity to pay for fuel. Of course the father pays no child support.
In any event, even if there were a feasible option for supervision able to be identified, it does not follow that I would automatically make such an order. That is because of the ambivalence expressed by J, and, in the event that I order there be supervised time between N and the father, the prospect that that would upset J and adversely impact upon the family dynamic.
Whilst I am acutely conscious of the desirability of finally determining the litigation between the parties, it does seem to me that in the event that the father can identify an appropriate supervisor, or Contact Centre, that he should have liberty to apply for an order permitting one or both of the children to spend time with him under such supervision. The difficulty is that, absent the supervisor or centre being able to be identified, one cannot – or at least I would not be prepared to – make general orders permitting supervision of some kind with no specific supervisor or centre identified.
That said, it would need to be acknowledged that the fact that the father has already been barred from using Contact Centre facilities in the past would clearly raise questions about whether there would be any utility in making an order for supervised time. If he were to continue to behave as he did at R Contact Centre, any opportunity for supervised time that was afforded to the father by any orders is likely to be short-lived.
Telephone communication
Little argument was directed towards this by either party. There is no history of telephone communication between the father and either child. In my view there would be little purpose to be achieved by now instituting a regime of telephone communication, unless and until face-to-face supervised time can be arranged pursuant to orders. I am not persuaded that stand alone telephone communication between the father and either child would be in their best interests.
No time or communication at all
The mother argues that there should be absolutely no opportunity for any time to be spent by the children with the father, and no opportunity for communication. She says that because:
·The father presents an unacceptable risk of sexual, physical and emotional harm to the children;
·In the past he has, at least according to the supervising staff, misconducted himself during supervised time, with the consequence that he was barred from using the facility;
·J expresses real ambivalence about ever seeing the father again;
·In the event that N were to see him, it may disrupt the dynamic within the family, and particularly between N and J.
As has been seen, I am not persuaded that the father presents an unacceptable risk of physical harm to either child, and I am not satisfied that the father became sexually aroused during supervised time with the children at R contact Centre.
Moreover, N has constantly expressed a strong desire to see his father, and to have a relationship with him. So long as N is able to be adequately protected from any risk that the father at that time poses to him, then in my view, it is in his best interests to spend supervised time with his father, and depending upon how that goes, potentially to also communicate with him as well.
One means of ameliorating the concerns in relation to jealousy on the part of J, might be to give her the election of joining N for any supervised time with the father. That might overcome the perception that N is in some way being favoured, or that she is being punished. However I am mindful that in the second Family Report Ms Z at paras 72 to 74 noted that, at least in the past, J had displayed an acute stress reaction to the prospect of seeing the father, and even in January 2013, was clearly anxious and greatly troubled about the prospect of seeing him. She concluded:
Any pressure even inadvertently placed upon her to make a decision about whether to see her father, clearly distresses her and upsets her equilibrium. The action in itself of coming to the Family Report interview creates in [J] an expectation that she must take on board responsibility for seeing her father, and with that comes considerable anxiety about her father’s reaction if she disappoints him.
Plainly such concerns would loom large in any consideration as to whether J should be given the option of attending supervised contact, or required to by order, or that there be no supervised time with either child.
However as I have indicated earlier, absent there being any identified supervisor or Contact Centre sufficiently proximate to the mother’s home, it is idle to discuss further whether supervised time might ultimately be ordered. However I am not persuaded that there should be an order specifically precluding the father from seeking to agitate further for supervised time, in the event that such a facility can be found.
For those reasons, in my view it is not in the best interests of these children that there an order prohibiting any further contact or communication with the father, but rather that there should be liberty afforded to the father to, in the event that he can identify an appropriate supervisor, to seek orders for supervised time between himself and the children, such application to be made on no less than 28 days written notice to the mother. That matter would not need to be determined by me, but could come on before any Judge of this Court.
CONCLUSION
Save for the orders which I have previously indicated I shall make, and the liberty to apply which I have just identified, it is appropriate that all extant applications otherwise be dismissed.
I certify that the preceding one hundred and seventy nine (179) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 9 July 2014.
Associate:
Date: 9 July 2014
Key Legal Topics
Areas of Law
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Family Law
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Evidence
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Statutory Interpretation
Legal Concepts
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Procedural Fairness
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