Castle and Castle
[2007] FamCA 1109
•3 July 2007
FAMILY COURT OF AUSTRALIA
| CASTLE & CASTLE | [2007] FamCA 1109 |
| FAMILY LAW – CHILDREN – With whom a child lives – With whom a child communicates – Best interests of a child – Supervised Contact | |||
| APPLICANT: | Ms Castle | ||
| RESPONDENT: | Mr Castle |
| FILE NUMBER: | BRF | 585 | of | 2006 |
| DATE DELIVERED: | 3 July 2007 |
| PLACE DELIVERED: | Brisbane |
| JUDGMENT OF: | Barry J |
| HEARING DATE: | 12, 13 and 14 June 2007 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Carmody of Counsel appeared for the Applicant Mother |
| SOLICITOR FOR THE APPLICANT: | Suthers Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Linklater-Steele of Counsel appeared for the Respondent Father |
| SOLICITOR FOR THE RESPONDENT: | WP Lawyers |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Selfridge of Counsel appeared for the Independent Children’s Lawyer |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Gary Couper, Solicitor |
Orders
(1)That the children, P born … July 2003 and S, born … December 2004 live with the Mother.
(2)That the Mother and Father have joint responsibility for making decisions regarding the long term and day to day care, welfare and development of the children.
(3)That the Mother have sole responsibility for the day to day care, welfare and development of the children.
(4)That the Father may communicate with both children at all reasonable times as agreed but failing agreement:
(i)by telephone once per week on Tuesday between 6.00 pm and 7.00 pm with such communication to be initiated by the Father;
(ii)on Father’s Day by telephone between 6.00 pm and 7.00 pm with such communication to be initiated by the Father;
(iii)on the children’s birthdays by telephone between 6.00 pm and 7.00 pm with such communication to be initiated by the Father;
(iv)on Christmas Day by telephone between 6.00 pm and 7.00 pm with such communication to be initiated by the Father;
(v)by way of correspondence in the form of birthday cards, Christmas cards and letters at any time.
(5)Each party shall keep the other informed of any change of contact address and/or contact phone number within twenty-four (24) hours of making such change.
(6)Whilst the children are in her care, the Mother shall not denigrate the Father in the children’s presence.
(7)This Order shall be authority for the Father to have access to any school reports and notice of any medical treatment information relating to the children.
IT IS NOTED that publication of this judgment under the pseudonym Castle & Castle is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
FILE NUMBER: BRF585/2006
| Ms Castle |
Applicant
And
| Mr Castle |
Respondent
REASONS FOR JUDGMENT
Applicant Mother
Ms Castle - date of birth … May 1975 - resides in North Queensland with her two children.
Respondent Father
Mr Castle - date of birth … September 1969 - resides with two male friends in a house at … in Brisbane close to his parents (refer paragraph 3 of Father’s affidavit filed 4 August 2006).
Children
P born in July 2003 and S born in December 2004.
Paternal Grandparents
The paternal grandparents - current supervisors of Father’s time spent with the children.
Experts Who Have Provided Reports
Mr H, social worker, provided two reports dated 16 February 2006 and 23 March 2007 respectively.
Dr L, psychiatrist, provided two reports which are annexed to his affidavits sworn 11 July 2006 and 25 May 2007 respectively.
Mr N, clinical psychologist, provided a report dated 7 June 2007.
Independent Children’s Lawyer
The Independent Children’s Lawyer was originally Mary Louise Smith. At a point of time the Independent Children’s Lawyer withdrew and was replaced by Gary Edward Couper.
Chronology
The parties commenced cohabitation at the time of their marriage in September 1999. Separation occurred on 10 June 2004.
Previous interim orders were made by consent on 23 March 2005 when they were filed in the Magistrates Court, Mackay. Those orders related only to the child P. They provided that until the child was two years of age the Father was to have contact once per month from 9.00 am Saturday until 4.00 pm Sunday with the contact to occur at the residence of the paternal grandparents and to be supervised by either of the paternal grandparents or the Father’s brother, R. Upon the child obtaining two years of age, contact was to be extended to once per month from 9.00 am Friday until 4.00 pm on Sunday. Thereafter there was provision for unsupervised contact to occur at either the Father’s residence or the residence of the paternal grandparents. There was also provision for school holiday contact once the child commenced schooling.
The Mother subsequently instituted proceedings in the Federal Magistrates Court on 5 September 2005.
On 24 February 2006, Federal Magistrate Slack made orders by consent that the Father have contact with both children from Friday 23 December 2005 until Monday 26 December 2005 and again from Friday 13 January 2006 until Monday 16 January 2006.
The matter was then transferred to this Court.
I do not propose to canvass the various orders sought in the original application or the Wife’s amended application filed on 8 June 2006 nor indeed in the amended response filed by the Father. It was common ground by the time final submissions were made in this matter that:
· The children would live with the Mother.
· There be an order for joint long term responsibility.
· Either the children would spend no time with their Father but the Father be at liberty to communicate by phone once a week and on special occasions and be at liberty to communicate by way of birthday cards, Christmas cards and letters at any time.
· Or in the alternative the Father spend time with the children in accordance with the arrangements set out in his draft orders, namely, such contact to be supervised at all times by the paternal grandparents or one of them.
Issue for Determination
The issue to be determined is whether there is an unacceptable risk to the children if the Father was to spend time with them with such time being supervised by his parents.
It is common ground that supervision cannot take place at a Contact Centre. All available Contact Centres have a strict rule that they will not take on the role of supervision where the parent to be supervised has a conviction for offences of violence or offences of a sexual nature involving children. The Father did not suggest any other person as being appropriate to supervise any time he is to spend with the children.
The matter was set down to proceed over a period of three days on 12, 13 and 14 June 2007. On the morning of the 12 June 2007 I was asked to stand the matter down for a period of time to allow for negotiations to take place. When the Court reconvened I was asked to stand the matter down further until
2.15 pmon the following day. I was also requested to make an order that the paternal grandparents be provided with the sentencing remarks of the Supreme Court Judge made in June 1994 when sentencing the Father in the Supreme Court of the Northern Territory to a term of seven years imprisonment. I was also asked to allow the paternal grandparents to read the recently filed report of the psychologist, Mr N. Orders were made in these terms.
On the afternoon of 13 June 2007 Counsel for the Mother and Counsel for the Independent Children’s Lawyer sought to cross examine the paternal grandparents, which cross examination was limited solely to their ability to fulfil the role as supervisors. Thereafter the matter was adjourned to 14 June 2007 for final submissions to be made. On that day the Father did not attend.
Material Relied on by Applicant Mother
The Mother relied on two affidavits filed on 13 July 2006 and 4 May 2007. She also relied on an affidavit by her father filed on 13 July 2006.
Material Relied on by Respondent Father
The Father relied on two affidavits, one filed 4 August 2006 and the other filed 31 May 2007, and an affidavit of the paternal grandmother filed 4 August 2006. There was no affidavit filed by the paternal grandfather but permission was sought and given for the paternal grandfather to give oral evidence on the afternoon of 13 June 2007.
Material Relied on by the Independent Children’s Lawyer
Two reports of Mr H – as previously detailed. Two reports of
Dr L, psychiatrist. Report of Mr N.
Before considering the evidence of the paternal grandparents I turn to an assessment of the Father’s character.
Father’s Criminal History
The Father has an extensive unenviable criminal history for a man 37 years of age.
A summary of some of the criminal offences include:
· In 1987 charged with a series of offences of dishonesty including stealing, false pretences and breaking and entering.
· District Court, Brisbane, September 1989 – charged with indecent dealing with a seven year old boy and sentenced to two years imprisonment. The Father pleaded not guilty to this offence although he has subsequently admitted culpability. The records indicate that in January 1990 the Father appealed against the conviction and sentence but such appeal was dismissed.
· Other offences in Brisbane included dangerous driving and possession of a drug in April 1992 and in June 1992 charges of stealing and false pretences.
· Supreme Court, Northern Territory, 1994 – charged with assault occasioning grievous bodily harm, depravation of liberty and other charges relating to the one incident – sentenced seven years imprisonment. The victim was a six year old boy. The sentencing remarks of the Supreme Court Judge included the following observations:
“The child was naked, dazed and distressed. He was conveyed to the Royal Darwin Hospital where he was placed in intensive care. It was observed that he had a collapsed and punctured left lung, a deep cut to the back of the head and he had lacerations to the left leg below the knee, a deep cut at the base of his scrotum, a bloodied nose, blackened eyes and scratch marks over his torso.”
The Father had sexually interfered with the young boy prior to him receiving these injuries. When initially interviewed by the Northern Territory police the Father denied any involvement in the matter. He subsequently made a full confession.
The Supreme Court Judge made further observations of other injuries sustained by the child and comments about the character of the Father:
“On local examination to the face, multiple injuries were noted on the front and left side of the face. These took the form of abrasions and bruises, being most prominent around the outer aspect of the left eye - - There was a poorly defined curved linea abrasion to the left neck and the face was generally suffused and swollen - -
In summary Dr […] says the combination of injuries was consistent with his having sustained a complex series of injuries involving an asphyxial element, blunt force injury, sharp force injury and anal penetration. The injuries show that the child was assaulted and it is not put that there was an attempt to strangle it is put however that this occurred incidentally during the assault - -
The details of his history and the report of Mr […] are certainly not flattering. It reveals he is a small time drug peddler who uses his peddling to support his own drug addiction and he is a person who lives a parasitic existence, relying on Social Security and his parents to support himself.
He is also a person with the ability to lie. He is apparently noted to be a pathological liar and a person who is prepared to steal, even from his own parents. He has a criminal record which whilst not extensive is certainly unenviable. It includes a record of offences for dishonesty including stealing charges, false pretences, break and enter and unlawful use of motor vehicles. There is one prior conviction for a drug offence.”
The Father appealed the sentence imposed on him but the Full Court of the Supreme Court of the Northern Territory dismissed the appeal. The Father served the bulk of his sentence in the Brisbane area to allow him the opportunity to complete a sexual offender’s program.
· Further convictions for burglary and stealing in the Brisbane area in 1997 for which he was sentenced to 12 months imprisonment.
· His most recent conviction was for possession of cannabis in June 2006.
Risk of Father Re-Offending
Risk factors assessed by Mr N as being relevant to the Father
re-offending by an offence of a sexual nature include:
· Continuing use of drugs.
· Not being in a stable relationship.
· Not being in long term employment.
· Committing criminal offences other than offences of a sexual nature.
On the evidence available I am far from satisfied that the Father remains free from drug use. The report of Mr N discusses features of the Father’s impulsivity such as resigning his employment in a telephone conversation with his employer because he was too tired to work as a driver on that particular day. I am satisfied on the evidence available the Father lacks stability in employment. It would seem on his own admission to the report writer, Mr H, that he has rarely held positions for longer than six months. I am also satisfied the Father does not have stability of address. During the period of this litigation he has resided with his parents in Brisbane, resided in the northern rivers area, North Queensland and now at an address in the Brisbane area.
The Father lacks stability in relationships. He has had two relationships in the last two years, one with Ms D which appeared to have lasted approximately twelve months and more recently with another woman. That relationship terminated when he made threats to “knock out” the woman’s teenage son. Even if the child had been as annoying as alleged by the Father I do not accept it was appropriate conduct on his part to make such a threat to a child of that age. The Father says that in recent times he has engaged in a homosexual relationship when he met a partner on the Internet. It would appear that there is at the present time no stable relationship in place.
Assessment of Father’s Character Generally
The evidence which leads me to conclude that the Father is a person of poor moral character includes the following:
a)On one occasion he stole from his parents.
b)He has made allegations in the present litigation to Mr H, the report writer, that he believes the Mother to be schizophrenic. There is not one shred of evidence to suggest that the Mother has at any time suffered any form of mental illness.
c)In the first report of Mr H it is disclosed that the Father has been a person of interest to the police in a major murder investigation focused on the Sunshine Coast area. The Father told Mr H he lied to the police about his whereabouts on the day in question. He had in fact been seeing a drug dealer at the time but didn’t want to dob in the drug dealer. To give false evidence to the police in an inquiry into a murder investigation is to my mind appalling behaviour.
d)When he was charged with possession of cannabis in June 2006, the Father informed the report writer that he, “Tried to get a friend to take the rap”. Such a dishonest approach reflects poorly on the Father’s credibility. The date of the offence is not readily available as compared to the date of conviction but I note the conviction was in June 2006. The time of the incident where the Father was left unsupervised by the paternal grandparents was in the following month.
Level of Commitment to His Children
I make the following observations based on the evidence about the commitment shown by the Father to his children.
The Father has only paid minimal child support for the support of his children. He lied about the question of arrears. The Wife annexes to her affidavit of
13 July 2006 correspondence from the Child Support Agency which indicates that the Father’s liability at the relevant time was approximately $21 a month and his arrears totalled $280. I would conclude from this that he was more than twelve months in arrears. The Father disputed the Mother’s assertions but on the evidence available I clearly prefer the Mother’s version of events. Why he should only be paying minimal child support when he says he has always been in full time employment was not made clear. In paragraph 51 of her affidavit of July 2006 the Mother sets out her version of the position with child support. She deposes to the fact that the last payment was in March 2006.
Where the matter was before the Courts at that time I would have thought it was incumbent on the Father to ensure compliance with the Child Support Agency assessments in order to indicate good faith and in addition to indicate an ability to comply with lawful requirements.
Orders were made for the Father to complete a Triple P program. Such an order has been in place for a significant period of time. The Father has not completed the program. I reject his explanation that he is too tired after work to attend such a course. Another explanation given was that he was in New South Wales and no such courses were available. The Wife was able to search the Internet and find course availability in the district in which the Father was residing within a matter of minutes.
Shortly prior to trial the Independent Children’s Lawyer arranged for the Father to be assessed by Mr N. At page 3 of his report Mr N observes:
“[The Father] was a reluctant interviewee and failed to return to my office as scheduled on 30 May to return four psychological self report questionnaires. These questionnaires were to be used to assess his history of:
·Childhood abuse;
·His potential to perpetrate child abuse;
·His anger expression; and
·Any adult psychopathology.
Because these tests were not returned I emphasis that [the Father] compromised the results of this assessment.”
If the Father was genuine in his claims that he wants to spend time with his children and is also genuine in his claims that he has reformed his past behaviour I would have thought he would be doing all in his power to impress the report writer about such matters. Sadly, Mr N has had to report in the terms as quoted that the Father was less than co-operative with the interview process.
In paragraph 37 of her trial affidavit the Mother deposes:
“37.I have always kept a diary of contact between myself and the Father and our children and the Father. On perusal of my diary I note that the Father has only exercised his phone contact with the children on ten occasions this year. On these ten occasions, half of them occurred in January of this year and then the Father did not ring to talk to the boys at all during the whole of February. Since that time he has only rung on 18 April 2006, 4 May 2006, 23 May 2006, 2 June 2006 and 4 July 2006. Most of these phone calls have been on the Thursday shortly before physical contact is to occur.”
It is concerning that the Father does not take advantage of every opportunity provided by Court Orders to make contact with his children.
Both the Mother and the Father were the recipients of Legal Aid for the purposes of the hearing. It was a concern to me that when final submissions were to be made, without any explanation, the Father failed to attend Court.
Assessment of Paternal Grandparents
Paternal Grandfather
The paternal grandfather did not file an affidavit in these proceedings. He did not attend for the interviews for the first family report. He did not attend on the first day of trial nor did he attend on the last day of the trial. He attended on the afternoon of the 13 June for the purpose of cross examination.
I would conclude from this behaviour that the father’s support of his son in the litigation has been less than fulsome.
Incident of July 2006
The paternal grandmother was in a motor vehicle accident one weekend when the children were at her home having supervised contact with their father. The paternal grandmother says she had taken her husband to the local RSL for an emergency meeting.
On my recollection of the evidence she says she travelled at about 6.00 am and the paternal grandfather’s version was that the meeting was at about 9.00 am. On the way back from dropping her husband off she was involved in a motor vehicle accident. Because of the damage to the vehicle it was necessary for her to telephone the Mother requesting her to do the travelling to collect the children. In relation to this incident I make the following observations:
· The version of the paternal grandparents differs in material particulars. They are adamant that when she realised she would be taking her husband to the RSL she called in a neighbour to be there to supervise the children even though the children presumably were asleep at the time. If in fact she was delivering the father at 6.00 am I would find it highly unlikely that the neighbour would have been brought in at that hour. There is no corroborative material forthcoming from the neighbour. If the trip was to be at 9.00 am there is no explanation as to why she simply could not have taken the children with her at the time.
· I accept the submissions made on behalf of the Mother that the only reason this incident came to light was because, of necessity, the paternal grandmother had to contact the Mother to say that their vehicle could not be driven and they required her co-operation to collect the children.
The Mother says in her trial affidavit that the children have reported to her spending time with their Father seemingly at his new premises. I find it highly unlikely that the children would have fabricated such an account to their Mother. There is no evidence forthcoming from the paternal grandparents that they have supervised contact with the Father in this environment.
In Mr H’s second report at paragraph 7.6 he notes:
“7.6[The paternal grandmother] said that the Father had been living with she and her husband now for “well over 12 months – must be going on 18 months”. When it was suggested that [the Father] had said that he was living with [Ms D] in New South Wales at the time of the earlier family report [the paternal grandmother] said “he was coming and going”, she added “I think he and [Ms D] still talk”.
At paragraph 7.9 Mr H records the paternal grandmother as saying:
“7.9[The paternal grandmother] said that she did not consider her son to be any risk to the children. She added, “he doesn’t hide anything from us.”
The paternal grandmother had no knowledge of the Father’s conviction for possession of cannabis in June of 2006.
Cross Examination of Paternal Grandparents
In the course of written submissions presented by Counsel for the Independent Children’s Lawyer at page 4, the following appears:
“By admission there is a chequered past in respect of the supervision role, which could be addressed in that “people make mistakes” but if the paternal grandparents do not harbour a genuine belief that their son poses a significant risk to their grandchildren then it is submitted that they are not suitable to supervise future time the children spend with their father.”
It is notable that when questioned at length as to his understanding of the Father’s risk/his own role re: supervision, the paternal grandfather stated that the experts, “Had an opinion”, that he did not share and that drugs played a significant part in his son’s conduct. The paternal grandfather indicated he did not believe all that Mr N said, adding, “Some of it is hearsay”. The paternal grandmother thought that the Father had proved himself. The paternal grandfather was of the view that the offences that had been committed were an aberration, “Because he was on drugs”.
To my mind neither grandparent was able to exhibit any degree of objectivity as to the level of risk their son posed to his children. The paternal grandfather exuded the air of someone who has had a lengthy service in the Armed Forces. At the conclusion of his evidence he stated, “I stand by my beliefs and my country too”.
The beliefs which he gave in the course of his evidence were to the effect that he did not believe his son requires supervision at this stage and that he had paid for his mistakes but he was prepared to supervise because that is what was necessary to allow the Father and the grandparents to see the children.
When the paternal grandmother was questioned as to what she understood Mr N’s report to say she was unable to adequately summarise the effect of same. Similar comments apply in relation to the sentencing remarks of the Supreme Court Judge which she had been asked to read overnight.
I do not want to be seen to be criticising the paternal grandparents in their role as grandparents. They obviously have a close relationship with their grandchildren. They themselves are of good character. I am confident they would not tolerate any harm coming to the children. The major concern I have however is they have been less than forthcoming in the past and because of their belief that the Father would never harm the children the level of supervision would not be as vigilant as I find would be necessary given the terms of the report of Mr N.
Experts’ Reports
Mr N
In paragraph 18 of his report Mr N notes:
“18.[The Father] will report that there is minimum planning in his sexual offending and he has acted (with) impulsivity when committing a sexual offence. Together then his gender preference confusion and impulsivity, work to increase his future risk.”
At paragraph 72 of his report he concludes:
“Results of the STATIC 99 indicate that [the Father] has a moderate to high risk of sexual offence recidivism. Results from the SONAR reported a moderate rate of sexual offence recidivism.”
In paragraph 73 under the heading “Conclusion” he observes:
“[The Father’s] motive for attending the assessment process was to assess his risk of sexual offence recidivisms so that he could perhaps have unsupervised time with his sons, [P] and [S]. I formed the opinion that his responses to the assessment process demonstrated a degree of ambivalence.”
In paragraph 58 he noted:
“58.I was of the opinion that his confusion over his gender preference, lack of intimate relationship, relationship problems and impulsivity were representative of lifestyle factors that could increase his risk of sexual offending.”
Mr N was not required for cross examination and his report is before the Court on an unchallenged basis.
I note that Mr N’s opinion differs from that of Dr L who saw the Father on two separate occasions. Dr L assessed the risk of recidivism as low.
Where there are two experts giving differing opinions in a matter such as this I would err on the side of caution namely adopting the more conservative opinion of Mr N that there is a moderate to high risk.
Mr N’s report is the latest in time. Mr N’s qualifications have not been the subject of challenge. Mr N has had the opportunity to peruse the two reports of Mr H and the two reports of Dr L.
Reports of Mr H
At paragraph 7.9 of the first report Mr H notes:
“7.9The paternal grandparents do not believe that [the Father] requires any supervision of his contact with his children. [The paternal grandfather] said, “I think you have got to show a bit of faith in a person, after a period of time, or else they lose confidence”. He added, “it has been awfully hard at times we have always supported him no matter what he has done. It has nearly ripped our family apart at times”.
These expressions by the paternal grandparents mirror the evidence they gave in the course of cross examination, notwithstanding the fact that they had been requested to read Mr N’s detailed report and the sentencing remarks of the Supreme Court Judge. Whether they had not read the documents properly or whether they mentally blocked the receipt of the information contained in those documents, I am unable to say. Both paternal grandparents used a series of platitudes to justify the approach taken. These included statements to the effect that he has done his time and accordingly the Father should not punished any further. It is trite to note that it is not the purpose of the assessment by this Court to punish the Father but rather to ensure orders are in place which adequately protect the children.
At paragraph 10.8 of his report Mr H observes:
“10.8[The Father] does not consider that he represents a risk to his own children but places considerable significance on the formation of the “bond” with his children as a protective measure. He was most eager to impress this on the writer. This in my opinion, suggests that [the Father] harbours some doubt, in his own mind as to the potential risk that his past proclivities represent to the children. It is further noted that [the father] does not present as connected to [S] in the same manner as he is to [P].”
At paragraph 9.3 of his second report Mr H details a phone conversation with Professor T who had conducted some “open ended counselling” with the Father. Mr H reports Professor T in the following terms:
“9.3He said there is a small proportion of sex offenders who could be described as “stereotypical” and that [the Father] could be described as fitting this category. He said that from his recollections [the Father] presented with low level psychopathic features and that further from his recollections there was no clear evidence that he did not present an ongoing risk.
9.4When asked if [the Father] presented a risk to his own children, [Professor T] said, “oh sure”. His recollections of [the Father] were that there were elements of planning and callousness in the offences for which he had been jailed and that such persons, “Tend, in general, to re-offend”.
Dr L’s Reports
In light of the views I have expressed about accepting Mr N’s report I do not find it necessary to canvass the opinions expressed by Dr L although I have read his reports in detail.
Section 60CC Factors
Benefit to the Children of Having a Meaningful Relationship with Both of the Children’s Parents
The Independent Children’s Lawyer in his written submissions observes:
“There is no dispute between the parties that it would be of some benefit for the children to spend time with their father. The issue is whether or not that can be managed effectively and without unacceptable risk.”
In his first report under the heading, “Observations of the Father with the Children”, Mr H observed (paragraph 6.4):
“6.4It is assessed that [P] has a significant attachment to his father and enjoys his company. The writer has no reason to assume that [S] would not demonstrate a similar attachment to his father as both parents had indicated same.”
The report writer was unable to assess S’ reaction with his father as the young child had fallen asleep at that stage of the afternoon.
Counsel for the Father observed in the course of submissions that:
“The severity of the risk is to some degree irrelevant.”
He was urging in his submissions that the primary consideration for the Court was to assess the suitability of the paternal grandparents as supervisors and in that regard to focus on the level of vigilance that they would maintain.
I do not accept the submission that the severity of the risk is irrelevant. Clearly it is a factor to be borne in mind when dealing with a known impulsive offender. If I assessed that the risk of harm to the children was minor I would be far more inclined to allow supervision to occur safe in the knowledge that if there was a lapse in the supervision regime by stealth or guile on the part of the Father the risk to the children was minor compared to the benefit of having an ongoing relationship with the Father and their grandparents.
However here, the impulsive offences committed in the past by the Father have been at the very serious end of the criminal spectrum. Such behaviour would call for a high level of vigilance and a high level of objectivity on the part of the supervisors. On the evidence available, I am unable to conclude that the paternal grandparents offer to a satisfactory level the degree of objectivity necessary for supervision to occur over a lengthy period of time.
The Need to Protect the Children from Physical or Psychological Harm from Being Subjected to or Exposed to Abuse, Neglect or Family Violence
In her trial affidavit, paragraphs 55, 56 and 57 the Mother deposes as follows:
“55.[B] is my Aunty. I recall that in 2000 [B], her husband […] and their daughter [J], stayed with [the Father] and I at our residence. They only stayed for one night.
56.I recall shortly after they left [B] rang me in relation to disclosures made by [J] that she had been inappropriately touched by [the Father]. I refused to believe they were true because we were only one year into our marriage and I think I was trying to bury my head in the sand. I did not want to believe that the Father could have done anything to [B]’s daughter.
57.Attached hereto and marked with the letters “TLC11” is a copy of a statement received by myself from [B]. I am aware that my solicitor has redrafted the statement into affidavit format which was forwarded to [B] for checking and signing. [B] has since told me that she does not want to go to Court because she is concerned that any attention [J] might receive would be detrimental to her emotional and psychological wellbeing. I have thought about her wishes long and hard and have decided not to subpoena her to Court in relation to this matter despite being advised that her evidence adds weight to my application before the Court.”
In the signed statement she forwarded B says:
“I, [B] am [the Mother’s] Aunt. I am concerned about the welfare of [P] and [S]. In August of 2000 whilst travelling we stopped at [the Father] and [the Mother’s] for the night. A few days after we arrived home our daughter [J] who was 3 years old at the time came to us and ask us to play with her bottom, when I asked what do you mean she said that [the Father] had played with her bottom when we were at there house and it was nice. When I asked how did he play with your bottom she show us that he had pulled down her pants and used two finger to rub the outside of her vagina. When I asked what happen she said when my husband and I were having coffee her and [the Father] went into the other room to play with the cat she was on the bed when this occurred when I asked what happen next she said [the Father] heard us he pulled up her pants and grabbed the cat. I did not make a fuss of this with [J], but I rang [the Mother] strait away and told her what happen, she denied this and defended [the Father]. I latter rang Lifeline counselling services as I was very concerned. They put me onto a child expert who told me as there was no penetration or physical evidence it was our word against his and as [J] was only 3 at the time the courts would not here her. They also said as she was not traumatised by what had happened it was best not to mention it again and put her under stress thinking she had done something wrong. My husband and I were not aware at the time of [the Father’s] criminal past with children, we knew he had a record but were lead to believe it was for drugs and car related incidents, if we had known about his crime with children we would not have let our child near him. After this incident we cut off all contact with [the Father] not allowing him to any family functions or attending anything he would be at.
This is my True and accurate account of the events as happens.”
The significance of this evidence is that it raises the possibility the Father has engaged in inappropriate sexual contact with a three year old girl. The circumstances surrounding the disclosure would indicate there was no knowledge on the part of B of the Father’s true criminal history.
The most disconcerting aspect is that the abuse could have occurred on one night when there were three other adults in the home and occurred in circumstances where at the time there were no suspicions raised in any of the other adults present. It appears the whole incident was over within a very short space of time.
The Willingness and Ability of Each of the Children’s Parents to Facilitate and Encourage a Close and Continuing Relationship Between the Children and the Other Parent
I would compliment the Mother on the extent to which she has gone in her endeavours to further a relationship between the children and their Father. She entered into consent orders in the Magistrates Court, Mackay with some knowledge of the criminal background of the Father. She has allowed supervised contact to continue with even greater knowledge of the Father’s criminal record. She has encouraged communication by phone. She has encouraged a relationship with the paternal grandparents.
I accept that the Mother is a woman of low self esteem. She is not a person in my assessment given to offending people or wishing to be difficult. However at this point in time she has taken a stand based on a sensible understanding of the implications of the report of Mr N.
She appears to be sufficiently perceptive to understand that whilst there may be adequate vigilance on the first 10 contact weekends by the time the 20th or 30th contact weekend comes to pass the paternal grandparents may become more casual and more relaxed particularly given their views that their son does not pose a risk to his children.
I do not deem it necessary having regard to the limited nature of the issues in dispute in this matter to engage in an assessment of the other factors recited in section 60CC.
It is a concern that the children in this matter are not of an age where they could protect themselves or adequately be relied on to report any inappropriate incidents involving their persons.
Case Law
In the well known decision of B v B 1993 FLC 92 357 at 79780 the Full Court observed under the heading “Who should supervise the access?”:
“Both social science literature and experience demonstrate that it is generally inappropriate to have friends or relatives of the access parent as supervisors of access where any risk of harm to the children exists. - -
Family and friends are not neutral but will usually, as is the case here, have an opinion as to whether any harm has occurred or whether any risk exists. They may therefore believe that close monitoring of the children is unnecessary. In the practical sense they cannot always be present and may fail to respond protectively to complaints of abuse or distress by the children. Supervisors must be available to the children for safety and support and be prepared to intervene on the children’s behalf if an issue of protection arises during the visit. It is, in our opinion, unrealistic to expect a supervisor to undertake those responsibilities on a regular weekly or fortnightly basis for an indefinite period.
For the above reasons it is in most cases undesirable for friends or family of the access parent to supervise children during access periods in circumstances where either abuse has been found to have occurred or there is an unacceptable risk of abuse occurring.”
The law on this subject has not changed since this decision was delivered in 1993.
In many cases orders are made for family members to supervise time spent by a parent with a child based on practical considerations such as an inability to afford a paid supervisor, unavailability of any other appropriate supervisor, distances involved, together with an assessment of the nature of the risk.
However, the basic principle enunciated in B v B has withstood the test of time and has done so for the eminently sensible reason that it accurately reflects situations which commonly arise.
It is inappropriate for family members to supervise where the family members are not fully accepting of the level of risk particularly where the Court assesses the risk to be of a serious nature and the likelihood of such risk to be in the moderate to high category.
In an article written by the Honourable John Fogarty AM entitled “Unacceptable Risk a Return to Basics” published (2006) 20 Australian Journal of Family Law he observed at page 251:
“While the High Court’s formulation (of unacceptable risk) is no talisman it has real content. It essentially directs the Court to an assessment of the “chances” of the risk occurring and the magnitude of potential harm if it did occur and requires a balancing exercise of advantages and detriments. That is, it requires the Court to identify the nature of the risk in the particular case, the degree of risk that may occur and the harm that may be caused if it does occur. It requires an evaluation of all of the risks and advantages and realistic options; all to be done in the best interests of the child.
Where the possible harm is serious (such as sexual abuse, physical assaults or gross neglect) a minimal risk that it would occur would usually be sufficient to regard that outcome as unacceptable. And this is so even if that conclusion produces detriments such as the loss of, at least, unsupervised access between a parent and child.”
In the context of the observations of the author I take account of the fact that the evidence contained in the experts’ reports has not been challenged in the proceedings before me.
Later in the article the author draws a distinction between proof of abuse and proof of unacceptable risk. I accept there is no evidence that the Father has abused his children but the fact remains various experts confirm there is a risk of such harm in the future. The views of the experts were not challenged and to my mind reflect ordinary human experience.
In this context I note that the Father himself accepts the need for supervision.
I am not satisfied the paternal grandparents are appropriate supervisors to safeguard the children from a future risk of harm.
In summary form my reasons are:
ii)The seriousness of the past abuse which has occurred.
iii)The concerns expressed by the Full Court in B v B that family members are not appropriate as supervisors.
iv)My assessment that the paternal grandparents are not appreciative of the degree of risk involved. Where the time spent with the children is to extend overnight, even if it was limited to once a month, after a period of some 18 months or so there is a risk that with the best will in the world the paternal grandparents would not be there at every available moment to check on the children. The Father has shown himself to be a very calculating and dishonest person who on his own admission is given to outbursts of impulsivity. It is in this context that I find the greatest risk arises.
On the final day of the hearing Counsel for the Father made an application for the paternal grandparents to be given leave to intervene. Whilst the Independent Children’s Lawyer did not oppose such an application, the view I formed was that the application was made too late in the litigation process. The issues involved and the consideration of granting the paternal grandparents the right to spend time with the children, are quite different to the issues under consideration in the present litigation.
The paternal grandparents are at liberty to bring an application seeking they be allowed to spend time with the children. Providing a Court could be satisfied they would not bring the children into contact with the Father there seems no reason why an order in such terms should not be made.
I would observe the Mother has shown herself to be a tolerant and caring parent. It may well be if she could be satisfied by assurances from the paternal grandparents they would not breach an undertaking to allow the children to see their Father, she may well agree to such visits taking place. Such an arrangement could easily be confirmed by way of consent orders. If not, it is a matter to be determined at a later point in time.
Before issuing orders in this matter I propose to deal briefly with the issue of parental responsibility.
Parental Responsibility
Section 61C is in the following terms:
“61C (i)Each of the parents of a child who is not 18 has parental responsibility for the child.
(ii)Subsection (i) has effect despite any changes in the nature of the relationship of the child’s parents. It is not affected for example by the parents becoming separated or by either or both of them marrying or re-marrying.
(ii)Subsection (i) has effect subject to any order of a Court for the time being in force - - “
Section 61D is in the following terms:
“61D(i)A parenting order confers parental responsibility for a child on a person but only to the extent to which the order confers on a person duties, powers, responsibilities or authority in relation to the chid.
61DA (i)When making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(ii)The presumption does not apply if there are reasonable grounds to believe that a parent of the child - - has engaged in:
a.abuse of the child or another child who at the time was a member of the parent’s family, or that other person’s family; or
b.family violence.”
Where the Father is not going to have physical contact with his children I would not have been inclined to make an order for joint parental responsibility. However, as the Mother has agreed to an order in these terms, despite misgivings on my part about the appropriateness of such an order, I will make the order as requested.
Orders to issue in the following terms:
(1)That the children, P born … July 2003 and S, born … December 2004 live with the Mother.
(2)That the Mother and Father have joint responsibility for making decisions regarding the long term and day to day care, welfare and development of the children.
(3)That the Mother have sole responsibility for the day to day care, welfare and development of the children.
(4)That the Father may communicate with both children at all reasonable times as agreed but failing agreement:
(i)by telephone once per week on Tuesday between 6.00 pm and 7.00 pm with such communication to be initiated by the Father;
(ii)on Father’s Day by telephone between 6.00 pm and 7.00 pm with such communication to be initiated by the Father;
(iii)on the children’s birthdays by telephone between 6.00 pm and 7.00 pm with such communication to be initiated by the Father;
(iv)on Christmas Day by telephone between 6.00 pm and 7.00 pm with such communication to be initiated by the Father;
(v)by way of correspondence in the form of birthday cards, Christmas cards and letters at any time.
(5)Each party shall keep the other informed of any change of contact address and/or contact phone number within twenty-four (24) hours of making such change.
(6)Whilst the children are in her care, the Mother shall not denigrate the Father in the children’s presence.
(7)This Order shall be authority for the Father to have access to any school reports and notice of any medical treatment information relating to the children.
I certify that the preceding ninety-five (95) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Barry
Associate:
Date: 3 July 2007
Key Legal Topics
Areas of Law
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Family Law
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