CAULFIELD & TENNYSON

[2018] FamCA 770

FAMILY COURT OF AUSTRALIA

CAULFIELD & TENNYSON [2018] FamCA 770

FAMILY LAW – CHILDREN – Magellan proceedings – Best interests of the child – With whom the child shall live and spend time – Where the child has had no contact with the father since May 2017 – Where the child has no meaningful relationship with the father – Additional considerations – Where there are past allegations of the father’s sexual abuse of the older half-sibling – Where the father denies the allegations – Where there is a current apprehended violence order in place protecting the older half-sibling from the father – Where the test to be applied is whether there is an unacceptable risk of the child’s sexual abuse by the father – Where the father poses an unacceptable risk of sexual abuse to the child – Where the child lives with the mother – Where the child spends no time with the father – Where the mother determines, as an incident of her sole parental responsibility, if and when the child ever spends time or communicates with the father.  

FAMILY LAW – CHILDREN – Parental responsibility – Where parental responsibility is rebutted due to allegations of family violence – Where there is an imbalance of power in the parties’ parental relationship – Where the party with whom the child lives should have exclusive parental responsibility – Where mother has sole parental responsibility – Where the mother seeks to change the child’s surname to match the surname of his half-sibling – Where that would be inappropriate – Where the parties agree the child’s surname may be changed to match the mother’s surname – Where orders provide for the mother to change the child’s surname.

Evidence Act 1995 (Cth), s 140(2)
Family Law Act 1975 (Cth), ss 4, 4AB, 60B, 60CA, 60CC, 60CC(2), 60CC(3), 61B, 61DA, 61DA(2), 61DA(4) 64B, 65AA, 65D, 65DAA, 65DAC, 65DAE

Betros & Betros [2017] FamCAFC 90
Briginshaw v Briginshaw (1938) 60 CLR 336
M v M (1998) 166 CLR 69
Marriage of Segley (1995) 19 Fam LR 363
Re Andrew (1996) 20 Fam LR 538
Slater & Light (2013) 48 Fam LR 573
U v U (2002) 211 CLR 238

APPLICANT: Ms Caulfield

RESPONDENT: Mr Tennyson

INDEPENDENT CHILDREN’S LAWYER: Fielden & Associates - Family & Relationship Lawyers

FILE NUMBER: NCC 2638 of 2017

DATE DELIVERED: 24 September 2018

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Austin J

HEARING DATE: 6 & 7 September 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Ticehurst

SOLICITOR FOR THE APPLICANT: Virginia Taylor Lawyer

COUNSEL FOR THE RESPONDENT: Mr Jacobs

SOLICITOR FOR THE RESPONDENT: Turnbull Law Pty Ltd  Trading as 0414lawyer

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Guyder

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Fielden & Associates - Family & Relationship Lawyers

Orders

1. All former orders in respect of the child X, born … 2015, are discharged.

2. The mother shall have sole parental responsibility for the child.

3. As an incident of her sole parental responsibility for the child, the mother may do all things necessary to change the child’s surname from “Tennyson” to “Caulfield”.

4. The child shall live with the mother.

5. Pursuant to s 68B of the Family Law Act1975 the father is restrained from entering upon or approaching within 100 metres of:

   (a)The mother’s residence; and

   (b)Any child-care centre, pre-school, or school attended by the child.

6. The mother shall authorise and request the principal of any child-care centre, pre-school, or school attended by the child to provide to the father, at his expense, copies of reports and photograph order forms relating to the child.

7. Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975, particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders, and details of assistance to comply with these orders are set out in the attached Fact Sheet, which forms part of these orders.

8. The Independent Children’s Lawyer is discharged upon the expiration of any applicable appeal period.

9. Costs are reserved for 28 days.

10. Any and all other outstanding applications are dismissed.

Notations

(A)These orders intentionally make no provision for the child to spend time or communicate with the father. If, when, and how the child spends time or communicates with the father will be determined by the mother as an incident of her exclusive parental responsibility for the child.

(B)These orders are consistent with the apprehended violence order made against the father by the Local Court of New South Wales at Town B, New South Wales on 6 August 2018.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Caulfield & Tennyson has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 2638 of 2017

Ms Caulfield

Applicant

And

Mr Tennyson

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

1. These proceedings involve a dispute under Part VII of the Family Law Act 1975 (Cth) (“the Act”) between the applicant mother and respondent father over parenting orders for their only child.

2. Although not a subject of the proceedings, the mother has an older child from a former relationship – a daughter, now nine years of age (“B”). In August 2016, B alleged she was sexually abused by the father, which caused tumult in the lives of the parties, the child, and B. The alleged risk of the child being harmed by his subjection to sexual abuse by the father was central to the proceedings, but it was not the only issue of significance.

3. The child has not seen the father since May 2017. The mother wants orders to preserve that situation. She wants the father to have nothing to do with the child. The father, however, wants orders enabling his re-entry into the child’s life. He wants to share parental responsibility for the child and to see him regularly.

History

1. The parties know each other from their childhood. They commenced their intimate relationship in 2014 and began living together shortly thereafter.

2. The mother quickly fell pregnant and the child was born in September 2015. At the time of trial he was just about to attain three years of age.

3. The parties separated in July 2016, but the father continued living in the family home. He was reluctant to leave even though the mother asked him to move out. In August 2016, B told the mother she was sexually abused by the father. The allegation was reported and formally investigated, following which the father was charged by police and he vacated the family home. The police successfully applied for an apprehended violence order to protect B from the father and the mother incidentally refused to allow the child to see the father between August and December 2016.

4. In December 2016, in response to the father’s requests to see the child, the parties negotiated arrangements for him to clandestinely attend the mother’s home to spend time with the child in her presence on alternate weekends, while B was away visiting her own father. The parties resumed their sexual relationship on the weekends they were together, which they also kept secret. In January 2017, the apprehended violence order protecting B was amended to permit the father to attend the mother’s home to visit the child under the mother’s supervision, provided B was not present.

5. In May 2017, the mother terminated her relationship with the father and refused to allow the child to spend any more time with him – either supervised or unsupervised.

6. The father took no action to remedy that situation. The mother commenced these proceedings in September 2017.

7. In December 2017, interim orders were made by Cleary J which provided for the child to live with the mother and prohibited the child from spending any time or communicating with the father. Accordingly, the child has not seen or spoken to the father since May 2017.

Proposals

1. The mother sought the orders set out in her Amended Initiating Application filed on 2 August 2018. She proposed that she have sole parental responsibility for the child, that the child live with her, and that an injunction be made to prohibit the child from spending time or communicating with the father at all.

2. The father sought the orders set out in his Second Amended Response filed on 16 August 2018. He proposed that the child continue to live with the mother, but that the parties share parental responsibility for him. He proposed that the child spend time with him on alternate weekends, during school holidays and on other special occasions, and further, that he and the child be able to communicate by telephone on any evening he chooses.

3. The Independent Children’s Lawyer notified the parties of the orders she intended to seek several months in advance of the trial.[1] The orders she ultimately proposed[2] were identical to those she foreshadowed in the Case Outline document she filed before the trial commenced. She supported the orders sought by the mother in all material respects.

   [1] Notation A made on 14/5/18

   [2] Exhibit ICL6

Evidence

1. The mother relied upon her affidavit filed on 2 August 2018, together with the annexures referred to therein, which were tendered.[3]

   [3] Exhibit M2

2. The father relied upon his affidavit filed on 16 August 2018, together with the exhibit referred to therein, which was tendered.[4]

   [4] Exhibit F1

3. The parties and the Independent Children’s Lawyer also relied upon:

   (a)The Magellan Report dated 2 November 2017, furnished to the Court by the New South Wales Department of Family and Community Services; and

   (b)The Family Report dated 29 March 2018.

Legal principles

1. Orders in respect of children are made under Part VII of the Act, where the meaning of a “parenting order” is defined (s 64B). The Court may make such parenting orders as it thinks proper (s 65D), within the context of the objects of the legislation and the principles which underpin those objects (s 60B).

2. When making parenting orders, the Court is mandated to regard the child’s best interests as the paramount consideration (ss 60CA, 65AA). The Act specifies the criteria which must be considered in arriving at a conclusion as to what is in the child’s best interests (s 60CC).

3. The Act imports a rebuttable presumption that a child’s best interests are served by an order allocating equal shared parental responsibility for the child to the parents (s 61DA). Parental responsibility is defined to encompass all duties, powers, responsibilities and authority conferred by law upon parents (s 61B). The legislation dictates the manner in which shared parental responsibility is to be exercised in respect of decisions relating to “major long-term issues” concerning the child (s 65DAC), being matters such as education, religion, culture, health, name, and changed living arrangements (s 4), and also in respect of decisions which do not relate to such significant issues (s 65DAE).

4. The presumption of equal shared parental responsibility does not apply in certain circumstances, including in instances of child abuse and family violence (s 61DA(2)), and the presumption may be rebutted if the Court is satisfied it would not be in the child’s best interests for the parents to have equal shared parental responsibility (s 61DA(4)). The presumption says nothing about the amount of time the child should live or spend with each parent, but the manner in which parental responsibility for the child is allocated by the Court may bear on that issue.

5. In the event an order is made allocating equal shared parental responsibility to the child’s parents, the Court is then obliged to consider both the advisability and practicability of the child living for equal time with both parents, or alternatively, living primarily with one and spending substantial and significant time with the other (s 65DAA). If parental responsibility for the child is allocated in some other way, then the exercise of the Court’s discretion about the child’s care arrangements is at large, though the discretion must still be exercised in the context of the child’s best interests being the paramount consideration.

Child’s best interests – primary considerations

Section 60CC(2)(a)

1. There was no controversy about the quality of the child’s relationship with the mother or its importance to the child. The father admitted she had a “close bond” with the child, she was the child’s closest attachment figure, and it was in the child’s best interests to remain living with her.[5] The Family Consultant’s observations of the child with the mother confirmed those facts to be true.[6]

   [5] Family Report, paras 68, 128

   [6] Family Report, para 155

2. The current quality of the child’s relationship with the father was, however, quite a different matter. It was the subject of controversy. The father told the Family Consultant his relationship with the child was “brilliant”, notwithstanding their separation over the 10 months which preceded his meeting with the Family Consultant in March 2018.[7] The mother believes otherwise. She does not regard the relationship between the father and child to be either close or secure. She believes the father used the child as a pawn to control her and she doubted the child would even remember the father.[8]

   [7] Family Report, paras 64, 129

   [8] Family Report, paras 130, 132

3. The Family Consultant elected not to conduct an observation session with the father and the child together.[9] She was challenged in cross-examination about the probity of that decision, but the reasons she gave for the decision withstand scrutiny. She was alive to the central dispute over the risk of harm allegedly posed by the father to the child and, although no harm could possibly have come to the child under the watchful gaze of the Family Consultant, her observation of the child with the father could not have caste any light on the existence or virulence of any such risk. The father’s implication to the contrary is rejected as misconceived. The existence of any risk of harm to the child must be determined factually on the evidence and, quite properly, the Family Consultant understood it was not part of her remit to enter upon that field of dispute. On the other hand, her observation of the way in which the child interacted with the father was at least capable of casting light on the quality of their relationship (relevantly for s 60CC(2)(a)), but she concluded it probably would not do so in this instance because of the child’s tender age and the long period of their estrangement. Since the child was separated from the father for a substantial period of his young life, during which time he was at a developmental stage when he was forming psychological attachments, it is understandable how the Family Consultant could have reached that conclusion. Her opinion on the subject was clearly defensible, even if susceptible to debate.

   [9] Family Report, para 161

4. In any event, the father overlooked another important impediment, to which the Family Consultant drew attention during her cross-examination. The interim orders made by Cleary J in December 2017 expressly forbade any contact between the child and father,[10] and she was not inclined to act in apparent contravention of that Court order in March 2018, for which she could not be fairly criticised.

   [10] Order 5 made on 5/12/17

5. Despite the absence of any observation of the child and the father together, the Family Consultant opined as follows in respect of their relationship:[11]

   …it is not in dispute that [the child] has been estranged from the father for two significant periods of time; a total of over a year in [the child’s] young…life. Given that these periods of estrangement have occurred during [the child’s] formative development period (a period in which attachment is formulated), it is likely that the degree of security [the child] would experience in his relationship with the father has been impaired. This is notwithstanding that the security of [the child’s] relationship may have already been impacted by other issues related to the father’s parenting capacity, as alleged in this matter.

   …

   …it would seem extremely unlikely that [the child] (if he remembered the father) would experience a secure or meaningful attachment relationship with him given the extended periods of separation between them in [the child’s] formative developmental period. This will be an important consideration for the Court when establishing future Orders for [the child].

   (Emphasis added)

   [11] Family Report, paras 156, 185

6. Such opinion evidence is accepted as correct since she was not challenged about its validity. In fact, the father’s counsel expressly conceded the validity of the second point when cross-examining the Family Consultant. The Independent Children’s Lawyer submitted, consistently with the Family Consultant’s evidence, that the child does not presently have a meaningful relationship with the father and one should not be “idealised”. In effect, the submission posited that no current meaningful relationship exists between the child and father and no point would be served by trying to craft orders to create one. Although the father railed against the correctness of that submission, it must follow from acceptance of the Family Consultant’s evidence that the child does not currently have either a secure or meaningful relationship with the father. The real question is whether an effort should be made to try and create, as distinct from restore, one between the child and the father.

7. Assuming the absence of a current meaningful relationship, the Family Consultant considered that making orders which prohibit future contact between the child and the father (as the mother and the Independent Children’s Lawyer both proposed) would not likely have any “detrimental impact” on the child, at least in the short-term.[12] Conversely, she recognised how the deprivation of the child’s contact with the father could have long-term psychological consequences, the chance of which depends upon a range of variables.[13] Obviously enough, the sufferance of such long-term detriment is possible, but not necessarily probable.

   [12] Family Report, para 190

   [13] Family Report, para 191

8. The variables the mother emphasised as important in the determination of that question, which she contended outweighed the potentiality of such psychological harm for the child, were: the quality of the child’s relationships with her and B, which will provide him with sufficient emotional support; the child’s lack of any initial solid relationship with the father prior to their estrangement, so the child is missing nothing anyway; and the adverse consequences which could result from the father’s re-engagement in the child’s life.

9. The father’s contrary position was simplistic and superficial: he does not pose any risk of harm to the child, so the child should immediately start spending time with him. He ignored the emotional consequences for the child which would inevitably result from him re-assuring the child that he poses no risk of harm to him, when the child would come to know (if he does not know already) that his mother and his sibling genuinely believe the opposite.

10. In cross-examination, the Family Consultant endorsed the opinions she expressed in the Family Report and said, if the child was deprived of a future relationship with the father, she did not think the detrimental effect upon him would be significant. Filial relationships are undoubtedly important. Other than in abusive circumstances, the right of a child to know and be cared for by both parents and to enjoy contact on a regular basis with both parents is intrinsic to the Act’s objectives (see U v U (2002) 211 CLR 238 at 285-286). Divorced from the other considerations in these proceedings, the child probably would benefit from having a meaningful relationship with the father, but other considerations are important. In so far as s 60CC(2)(a) of the Act is concerned, the child will probably not suffer any significant emotional harm if no orders are made to now try and create a meaningful relationship between him and father. It remains only a possibility.

Section 60CC(2)(b)

1. The child’s need for protection against harm caused by his exposure or subjection to abuse or family violence is primarily important. As mentioned, the father’s alleged sexual abuse of B was central to the parties’ dispute, but the issue of family violence also featured prominently.

   Sexual abuse

2. On the evening of 18 August 2016, B told the mother, (in language commensurate with her vocabulary) the father used his finger to manipulate her naked genitals earlier that afternoon. The police were immediately notified and they attended at the mother’s sister’s home the next day to speak with the mother and B. The police then issued a provisional apprehended violence order against the father on 20 August 2016, which was subsequently transformed into an interim and then a final apprehended violence order, which will endure until August 2019.[14] The father vacated the mother’s home in the period while she, B, and the child stayed temporarily with the mother’s sister.

   [14] Exhibit M1

3. B was first formally interviewed by the police on 1 September 2016, the transcript of which interview was tendered.[15] During the interview she gave a consistent story of the father taking her home, him telling her to go to her bedroom and lie down, him removing her clothing, him using his finger to touch her naked genitals, and him saying her genitals were “dirty”. She confirmed she told her mother, who immediately called the police. The police were satisfied the allegations were substantiated[16] and the father was charged with her sexual assault in November 2016.[17]

   [15] Exhibit F3

   [16] Family Report, para 77; Magellan Report, pages 2, 3

   [17] Family Report, para 18

4. B was interviewed by police a second time on 5 April 2017, the transcript of which interview was also tendered.[18] Again, she gave a consistent account of being touched by the father on her genitals while she was on her bed in her bedroom, but some of the details were notably different: she said she was playing in her room immediately before the incident, not that she had been sent to her room to clean it; the father used “a wipe” and not just his finger to touch her genitals; she described her genitals as “vagina” rather than “cha cha”; and the father used “sticky tape” to somehow restrain her during the incident.

   [18] Exhibit F2

5. In the first police interview, B implied similar incidents occurred on multiple occasions. The police certainly imputed that to be so from B’s disclosure.[19] It may be that, during the second police interview, she was describing a different incident from the one she described in the first interview or perhaps she conflated different incidents. For example, in the second interview she referred to the mother arriving home unexpectedly and the father hurriedly hiding the sticky tape, whereupon she told the mother about the father’s abuse and the police were then called, but it is known the police were not involved until 18 August 2016 and the mother certainly did not arrive back home and surprise the father that day.

   [19] Exhibit M5

6. In May 2018, the charges against the father were withdrawn and the prosecution discontinued.[20] The mother believes the decision was made to relieve B from the stress she would experience in cross-examination[21] but, regardless, the administrative decision of the State authorities to terminate the prosecution probably means they doubted the charges could be proven against the father beyond reasonable doubt, just as the father believed.[22] The termination of the prosecution leaves the father’s presumption of innocence undisturbed, but it does not follow that he did not commit the offence. He may have. The issue must still be canvassed in these proceedings because the chance of its occurrence is still liable to affect the decision about the orders which will most ably promote the child’s best interests.

   [20] Father’s affidavit, para 38

   [21] Mother’s affidavit, para 99

   [22] Father’s affidavit, para 75

7. The evidence might be sufficient to prove the father probably sexually assaulted B but, even if the evidence is not that strong, it may still carry sufficient weight to establish he possibly sexually assaulted B. In the first instance, it would most probably follow that the father poses an unacceptable risk of harm to the child (as his counsel properly conceded in final submissions) but, even in the second instance, the finding might (whether or not in combination with other evidence) still establish that he poses an unacceptable risk of harm to the child.

8. The Court must determine whether, on the evidence, there is a risk of the child’s sexual abuse if he spends time with the father and, if so, assess the magnitude of that risk (M v M (1988) 166 CLR 69 at 77) (“M v M”). The High Court said the test is best expressed by saying (using the statutory language which was then applicable) “a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse” (at 78). Just as it did in that case, an unexcluded possibility of past sexual abuse is capable of supporting a finding of unacceptable risk that a child will be exposed to sexual abuse (at 71, 78). There, the mother sought the discharge of access orders between a child and the father because she alleged the father had sexually abused the child. The trial judge concluded it was possible the father had sexually abused the child, but could not make a positive finding, and therefore discharged the access order to eliminate the risk of sexual abuse (at 78). The father’s appeal was dismissed.

9. The High Court cautioned (at 76) that “in considering an allegation of child sexual abuse, the court should not make a positive finding that the allegation is true unless… so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v Briginshaw (1938) 60 CLR 336” (“Briginshaw”). The Briginshaw principle is now encapsulated in s 140(2) of the Evidence Act 1995 (Cth). In these current proceedings, both parties actually urged that a positive finding be made. The mother wanted a finding that the father probably did sexually abuse B, while the father wanted a finding made he probably did not. In the alternative, the mother wanted a finding the child was at unacceptable risk of harm in the father’s care, which he refuted.

10. The father has always denied any sexual impropriety with B. He did so to the Family Consultant and in evidence, but his evidence about why he believes B implicated him raised as many questions as it answered. He inconsistently advanced two explanations for it: first, the allegations of sexual abuse were completely fabricated by B under pressure by the mother; and second, the allegations of her sexual abuse were true, but B either mistakenly or vindictively implicated him instead of the true perpetrator, whom he suspected might either be her biological father or the maternal grandfather.[23] His tacit acceptance that the allegations of sexual abuse might be true necessarily detracts from his alternate theory that the allegations are fabricated.

    [23] Family Report, paras 70, 71, 84, 173

11. The first explanation of fabrication is unconvincing for several reasons. B was interviewed independently from the mother on several separate occasions by the police and the Family Consultant spanning a period of about 19 months and she gave relatively consistent accounts. It is difficult to accept she was able to maintain an entirely false story about her sexual abuse over such a long period when the mother was not present in the interviews to exert influence over her. Nor could her coaching by the mother, in advance of the interviews, plausibly explain the relative consistency of B’s accounts. She did not recite the story when asked as if it was a rehearsed narrative.

12. In any event, the mother had nothing to gain from coercing B to maintain the lie inculpating the father. What could her motive have been? It could not have been to keep the father away from B or the child. B has her own father, whom she sees often and, since she has professed her dislike for the father, the mother could have stopped B seeing the father any time she chose without resorting to such an elaborate hoax. In fact, the mother had reason not to influence B to falsely accuse the father of sexually abusing her because it might have jeopardised B’ continuing residence with her. B’s biological father might have objected to B continuing to live with her if concerned about B’s safety in her care. Nor did the mother use the allegations to stop the father from seeing the child, so that could not have been her motivation. She submitted to the father’s requests to see the child and even resumed a sexual relationship with him, at least between December 2016 and May 2017.

13. The father posited the mother may have been motivated to coerce B’s allegations in order to have him removed from the family home or to prevent his abduction of the child, but those are weak hypotheticals. There were much easier ways for her to achieve those goals without going to such extravagant lengths as submitting herself and B to involvement in the lengthy and arduous process of the father’s criminal prosecution, which would have entailed B’s perjury during cross-examination.

14. Nor is the second explanation of his incorrect attribution with blame convincing. The father lived with the mother and B until the very day B disclosed the sexual abuse. If B was truly sexually abused, it is hard to fathom why she would have wrongly nominated the father as the perpetrator. At seven years of age, she was old enough not to honestly confuse him with her biological father or the maternal grandfather. The father was grasping at straws to suggest she might have mistaken him for another. Nor did B have any obvious reason to intentionally falsely accuse him if she well knew another person was the real culprit. She had no plausible motive, just as the mother had no plausible motive.

15. Of course, the father bears no onus to prove B or the mother were motivated to falsely accuse him in order to disprove his commission of serious misconduct, as that would invert the onus of proof. Given the mother wanted a positive finding of fact made that the father sexually abused B, she bore the burden of proving he did so on the balance of probabilities. However, because the father expressly contended the mother was motivated to influence B to fabricate the allegations or that B was motivated to falsely accuse him, the preceding discussion simply serves to debunk his arguments about their motives.

16. In final submissions, the father’s counsel contended the disclosure by the child, when interpreted literally, meant there had been no sexual impropriety at all. The father’s counsel contended B only described how the father benignly checked her genitals for cleanliness, which he had done on numerous occasions before, with the mother’s consent during the currency of their relationship. The submission is rejected because it faced insuperable impediments. First, the father did not give evidence to confirm any such innocent event occurred on the afternoon of 18 August 2016. In fact, he gave evidence to the contrary in intricate detail.[24] He said he punished B by making her take time-out at the front door and then go clean her room, after which he delivered her to the mother. He disavowed any inspection of her genitalia at all. His counsel’s submission was, therefore, entirely hypothetical as it had no evidentiary basis. Second, even if the father had admitted he undressed B to check the hygiene of her naked genitalia, no explanation was offered for why it would have been sensible for him to do so at that time, on that day and at that place, when he knew the mother was waiting for him to deliver B to her at another place. Third, B had no doubt his inspection of her genitalia was sinister, for otherwise she had no reason to complain about it. Fourth, the mother had no doubt B was reporting her improper sexual molestation, for otherwise she would not have immediately contacted the police.

    [24] Father’s affidavit, paras 17-28

17. It was also contended in final submissions that the mother’s failure to confront the father with the allegations – either at an early opportunity or indeed at all – called into question the veracity of the allegations, but that submission is rejected. For reasons yet to be discussed, the mother felt overborne by the father so her decision to immediately report B’s allegations to the police rather than discuss them with him is quite understandable.

18. The evidence which tends to support the finding the father sexually abused B is as follows:

    (a)The Family Consultant considered the evidence established the father engaged in behaviour towards B over a protracted period of time which was consistent with him “grooming” her for sexual molestation.[25] For example, albeit with the mother’s consent, the father showered B and applied cream to her genitals.[26] He also disciplined her and, according to B, wrongly accused her of misbehaviour to warrant such punishment.[27] The mother alleged the father often described B as a liar and tended to isolate her.[28] The father admitted in cross-examination he regularly called B a liar, both to her face and to the mother. The evidence also tended to suggest that, in preceding months, B’s behaviour was sexualised and she made comments which were suggestive of her exposure to pornographic images.[29]

    (b)The father’s explanation for his behaviour on the afternoon of 18 August 2016 was curious and unconvincing. His arrangement with the mother was for him to collect B from school and deliver her to the mother at her sister’s home. Instead, he took B back to the mother’s home to discipline her for misbehaviour at school. Why he would do so was puzzling, given the parties were then formally separated and B’s discipline was really a matter for the mother. The father knew that to be so because he admitted telling B’s school teacher the same afternoon that the mother was “the best person to speak to in regards to B’s behaviour”.[30] The mother sent a text message to him telling him it was “not [his] job to discipline her anymore”.[31] In any event, even if the father did feel entitled to administer the discipline, he had no explanation for why it had to be done at the mother’s home rather than at the mother’s sister’s home, where the mother was waiting for B. The mother also made that point to the father in another text message the same afternoon.[32]

    (c)B made a relatively contemporaneous complaint to the mother against the father on 18 August 2016. The father delivered her to the mother at about 4.00 pm and she complained to the mother at about 6.00 pm. The father asserted the two hour hiatus was significant, apparently because he thought it demonstrated B did not make a complaint at the first available opportunity, but that argument is rejected. It demands a standard of perfection from a child who was then only seven years old. It is now common knowledge that victims of sexual abuse may wait many years, let alone two hours, before disclosing their abuse.

    (d)B gave relatively consistent accounts of her sexual abuse by the father to independent and reliable sources over many months following her initial disclosure to the mother on the evening of 18 August 2016. She gave the same account to the police on 19 August 2016,[33] to more police officers at her school on 22 August 2016,[34] in her first formal interview on 1 September 2016,[35] in her second formal interview on 5 April 2017,[36] and to the Family Consultant on 21 March 2018.[37]

    (e)During her two formal police interviews, the introductory questions and answers clearly established she knew the difference between the truth and lies and that it was important for her to tell the truth.

    (f)B reported the father told her during the incident that her genitals were “dirty”, which was thereafter a constant component of her story. She told the police who interviewed her at school she was worried about being “dirty”[38] and she referred to it in both of her formal interviews.[39] Her concern about it was also brought to the attention of the paediatrician who examined her.[40] B’s fixation on how the father told her she was “dirty” is an aspect of the story which seems inherently truthful. It would have been unnecessary for her to fabricate that aspect of the story and, if fabricated, probably easily forgotten rather than long remembered. If that particular aspect of B’ story is true, then it is more likely her whole story is true.

    (g)When interviewed by the Family Consultant, B’s demeanour when discussing the father was consistent with her fear and loathing of him. She was observed to react both physically and emotionally to discussion about him.[41] In cross-examination, the Family Consultant said her reaction was spontaneous. B expressed her worry about the child being with the father,[42] which the Family Consultant said in cross-examination was “genuine” worry. Even the father admitted in cross-examination he understood why B would be fearful that he would steal the child from the mother, though he did not concede B had any proper basis to worry he would sexually abuse the child.

    [25] Family Report, paras 90, 171

    [26] Family Report, para 87

    [27] Family Report, paras 142, 169

    [28] Family Report, paras 48, 169

    [29] Family Report, para 91

    [30] Father’s affidavit, para 15

    [31] Father’s affidavit, para 26

    [32] Father’s affidavit, para 26

    [33] Exhibit F6, F7

    [34] Exhibit M5

    [35] Exhibit F3

    [36] Exhibit F2

    [37] Family Report, para 136

    [38] Exhibit M5

    [39] Exhibit F3 (pages 17, 20); Exhibit F2 (pages 3, 4)

    [40] Exhibit M4

    [41] Family Report, paras 135, 136, 137, 168

    [42] Family Report, para 143

19. The evidence which tends to contradict any finding the father sexually abused B is as follows:

    (a)The father consistently denied the sexual abuse alleged by B. He was cross-examined and maintained his denial but, unlike him, B did not give evidence and her allegations could not be directly tested.

    (b)B’s descriptions of the event differed in several material respects between her formal police interviews in September 2016 and April 2017. Although the different details were peripheral to the essential allegation of the father’s manual manipulation of her naked genitalia, the details were nonetheless quite different. However, given her young age, some minor variations in her story were to be expected. In fact, had she been entirely consistent in all respects it might have evoked criticism for being a rehearsed story.

    (c)The mother submitted to the father’s re-entry into her life for several months between December 2016 and May 2017. He contended it was inconceivable she would do so if she genuinely believed he sexually abused B in August 2016, inferentially because her first instinct would be to protect B and not engage in sexual relations with her abuser. The mother’s decision in that regard was certainly perplexing, but is explicable by the imbalance of power in their relationship.

20. The evidence is sufficient to foment considerable suspicion that the father did sexually abuse B and a very healthy sense of scepticism about the truth of his denial of it but, when weighing the evidence in the legal construct of the principles established by M v M, it is not necessary to ultimately make any positive factual finding. Before saying any more about the capacity of that evidence to alternatively establish the existence of an unacceptable risk of the child’s subjection by the father to sexual abuse, it is desirable to consider some other evidence which is pertinent to that question.

21. When he was a much younger man, in 2007, the father was convicted of having sexual intercourse with a minor. The conviction was later quashed on appeal, but there is no doubt the father and the girl had sexual congress because she bore his child and he does not dispute his paternity of that child.[43] The father told the Family Consultant he believed the girl was “of age” when they had intercourse,[44] but that is not what he told the police at the time. Back then, he admitted his belief that she was under age.[45] She was aged 15 years at the time and he was then not less than 22 years old. No evidence was adduced in these proceedings to explain why the father’s conviction was quashed, but it seemingly had little to do with the fact he knowing had sexual relations with a minor. Even if there was some doubt about the state of the father’s knowledge about the minor’s capacity to consent to the intercourse, he was still a willing participant in sexual relations with a child who was barely old enough to competently consent. The father admitted he failed to reveal that history, either to the mother or in these proceedings, before documents were produced on subpoena to verify the facts. His failure to reveal it until forced to do so by circumstances tends to imply his embarrassment about the incident and his understanding of how it affects his application in this case.

    [43] Family Report, paras 5, 24, 57

    [44] Family Report, para 57

    [45] Family Report, para 93; Exhibit ICL1 (pages 6, 10, 11, 13, 17)

1. The evidence about the father’s certain sexual intercourse with an adolescent in 2007 and his possible sexual abuse of B in 2016 establishes, in aggregation, the risk of his willingness to exploit the immaturity of younger people to engage them in sexual activity for his gratification.

2. It logically follows that the child is exposed by the father to the risk of sexual abuse. The degree of risk is unacceptably high and could only be attenuated by any interaction between the father and the child being professionally supervised, but whether even that is a desirable outcome depends on other considerations.

   Family violence

3. Aside from a physical confrontation in the months before separation, during which the mother suffered bruising,[46] there was no evidence of overt physical violence between the parties. Rather, the mother alleged she was systematically “coerced and undermined” by the father during their relationship.[47] She alleged the father denigrated her in the child’s presence and used the child as a tool to control her.[48] In particular, he did so by physically taking the child from her and threatening to abduct him, which the mother genuinely believed he was willing and able to do.[49] The father also isolated the mother and publicly derided her ability to cope.[50] The mother consistently made reports of that ilk about the father.[51]

   [46] Mother’s affidavit, paras 21, 25; Exhibit M3

   [47] Family Report, para 35

   [48] Family Report, para 40

   [49] Family Report, paras 40, 97, 99; Mother’s affidavit, para 29

   [50] Mother’s affidavit, paras 33, 34

   [51] Exhibits ICL2, ICL4, ICL5

4. The mother professed her continuing fear of the father. He contended her fear was nonsense because she willingly submitted to the resumption of their sexual relationship for several months between December 2016 and May 2017, during which period she was depicted in photographs to be happy in his company and she wrote him a loving greeting card on behalf of the child.[52] On one level, her apparent willingness to resume her relationship with the father was utterly inconsistent with her asserted fear of him but, on another deeper level, it was understandable, even if illogical.

   [52] Exhibit F1

5. The mother presented to the Family Consultant as “under-confident and apologetic” and a person prone to “anxiety and self-doubt”.[53] She was conscious of the child being “half of” the father, so she was torn between the conflicting objectives of protecting B and not shutting the father out of the child’s life. She was ashamed and confused about her contradictory feelings, about which she is now remorseful.[54] She presented at the trial as timid, which helped explain her past guileless submission to the father. She felt importuned by his repeated requests to see the child and so she decided to allow him to see the child secretly while B was not present, in which event she thought she might be meeting the needs of both the child and B.[55]

   [53] Family Report, para 29

   [54] Family Report, paras 43, 44, 177

   [55] Family Report, para 45

6. As the mother’s counsel submitted, she must have realised her permission for the father to see the child and her resumption of a sexual relationship with him for several months during early 2017 was improper, since there was no other reason for her to keep those facts secret. She told the father of her discomfort with the situation,[56] but it was not until May 2017 that she gathered the fortitude to resist him.[57]

   [56] Father’s affidavit, para 65

   [57] Mother’s affidavit, paras 85-90

7. The father denied he was “manipulative, abusive or controlling” during the parties’ relationship,[58] but his denial was inconsistent with the evidence. He admitted to the Family Consultant he continued to contact the mother during the investigation into his sexual abuse of B[59] and that he continued to contact her after she finally severed their relationship in May 2017.[60] During cross-examination, he conceded threatening the mother that he would take the child away from her, so his equivocation with the Family Consultant[61] and his sworn disavowal of the accusation as “totally unfounded”[62] were false or misleading. The Family Consultant said, without challenge, she would be concerned if the father used the child as a “tool to threaten the mother”.[63] It would show he is prone to exploit, rather than protect, the child which impugns his insight and parenting capacity, but it also demonstrates the lengths to which he would go to control the mother.

   [58] Family Report, para 60; Father’s affidavit, para 50

   [59] Family Report, para 66

   [60] Family Report, para 81

   [61] Family Report, paras 114, 115, 116, 117

   [62] Father’s affidavit, para 76

   [63] Family Report, para 184

8. As it transpired, the mother did not seek to use the evidence of the father’s controlling behaviour to thwart the child’s relationship with him. Rather, she only sought to use the evidence as “family violence” to render inapplicable the presumption of equal shared parental responsibility (s 61DA(2)(b)) and to explain why she submitted to the father seeing the child and to the resumption of their sexual relationship for the period of five months between December 2016 and May 2017 because, without such an explanation, her decision to do so seemed bizarrely inconsistent in the face of her belief in his sexual abuse of B.

9. However, for the purposes of application of s 60CC(2)(b) of the Act, the child does not need protection from any harm he might suffer from exposure to family violence by either party.

Child’s best interests – additional considerations

1. The mother told the Family Consultant she believes the father poses an unacceptable risk to the child[64] and she gave evidence to the same effect at trial. B also told the Family Consultant she felt “worried” about the child being with the father.[65] In cross-examination, the Family Consultant said she considered the beliefs expressed by both the mother and B were genuine. In final submissions, the father’s counsel contended the Family Consultant’s “impressions” about the honesty of their beliefs were not sufficiently probative of the fact, but the submission is rejected. The Family Consultant had sufficient experience for her opinion evidence to carry substantial probative weight.

   [64] Family Report, para 21

   [65] Family Report, para 143

2. Both the mother and B believe the risk of harm for the child arises from the potential for the father to sexually abuse him, as he did B. The child is currently unaware of the allegation about the father’s sexual abuse of B, but it is inevitable he will eventually learn of it while living with the mother and B. The father staunchly denies the allegation and is disturbed by the idea the child might come to believe otherwise. He confirmed in cross-examination that he will tell the child, once he learns of the allegations, that they are untrue. When asked to contemplate how that might affect the child, he was unable to say. If that was a truthful answer, it is evidence of his profound lack of insight, because he can only appreciate the problem from his own perspective. He cannot understand the problem that will cause for the child. On the other hand, if the answer was untrue, it could only be because he realises it would place the child in an untenable position. His refusal to acknowledge the fact tends to prove he wants to develop a relationship with the child for his benefit, not the child’s benefit. In either case, he prioritises his need for vindication above the child’s need for protection from insoluble conflict.

3. How could the child live with the mother and B, knowing they genuinely believe the father sexually abused B and he presents an unacceptable risk of the same form of abuse to him, but spend time with the father knowing he denies the allegation and contends B is a liar? It would impossibly divide the child’s loyalties and could only be productive of his deep emotional disturbance, as the Family Consultant predicted.[66]

   [66] Family Report, para 188

4. The child’s regular interaction with the father would also cause B considerable stress and perhaps even trauma.[67] She remains ignorant of how the mother allowed the father back into the child’s life in the period between December 2016 and May 2017. Although B is not the subject of these proceedings, her involvement in the family milieu is still a relevant consideration (s 60CC(3)(m)), not least because of the strength of the child’s relationship with her and how her disturbance would affect him. In cross-examination, the Family Consultant said it would be impossible to craft orders for the child to spend time with the father which would eradicate the risk of emotional harm for B.

   [67] Family Report, para 187

5. The mother would also be stressed,[68] but she resisted asserting she would, in that event, suffer such impingement of her parenting capacity that she would be unable to properly meet the child’s needs (see Marriage of Sedgley (1995) 19 Fam LR 363 at 371; Re Andrew (1996) 20 Fam LR 538 at 544-546). Her restraint from exaggerating her case was commendable.

   [68] Family Report, para 189

6. Sadly for him, the father is completely bereft of family support. He is estranged from the paternal grandfather, the paternal grandmother, and his siblings.[69] He is, therefore, unable to call upon family members for supervision to allay the mother’s fears about the danger he poses.

   [69] Family Report, paras 53, 54, 55

7. The parties live about three hours driving time apart, so there would be some practical difficulty involved in arranging for the child to spend time with the father. That is particularly so if professional supervision is required because the father works Monday to Saturday each week.[70] Sunday seems to be his only work-free day each week.

   [70] Family Report, paras 6, 7, 8

Conclusions and orders

1. The presumption of equal shared parental responsibility does not apply because the evidence demonstrates the father probably engaged in conduct which capably amounts to “family violence” as defined in the Act (ss 4AB, 61DA(2)(b)). Even if that were not so, the imbalance of power in their relationship would preclude the mother from negotiating important issues related to the child on an equal footing, so it would not be in the child’s best interests for the parties to share parental responsibility for him (s 61DA(4)).

2. The child will continue to live with the mother, so she should have exclusive parental responsibility for him.

3. The evidence leads to the conclusion that no orders should be made to prescribe the time the child should spend with the father. The child has no meaningful relationship with the father to recover, the father poses an unacceptable risk of harm to him, and any orders for the child to spend time with the father would cause irreparable emotional harm to B and enormous stress for the mother.

4. The imposition of permanent professional supervision would not help rectify or alleviate all of those consequences. In any event, the imposition of long-term supervision is generally regarded as undesirable for both the children and adults bound by such orders (see Betros & Betros [2017] FamCAFC 90 at [13]; Slater & Light (2013) 48 Fam LR 573 at 583-584) and, aside from the undesirability, an issue of procedural fairness emerges. There was no evidence the father would even submit to such orders and, furthermore, no party suggested orders to that effect should be considered as a fall-back position, which at least implied their disaffection for it. Therefore, the issue was not engaged and so no orders to that effect could be fairly made anyway.

5. The mother and the Independent Children’s Lawyer both sought an injunction positively prohibiting the child’s future interaction with the father, but there is no need for such an order. It was faintly suggested the mother might again relent to the father’s pressure, as she did in December 2016, and let him back into the child’s life and an injunction would help her to resist such manipulation, but that is unlikely. The mother realised her mistake in May 2017 and then acted voluntarily to oust the father, which position she has steadfastly maintained ever since. She is now wary of her vulnerability to the father’s manipulation.[71] An injunction is made to restrain the father from approaching the mother’s home or any child-care or educational facility attended by the child, but whether or not the child ever spends time or communicates with the father in the future will be determined by the mother as an incident of her exclusive parental responsibility for the child.

   [71] Family Report, para 51

6. The father sought an order permitting his regular, but ad hoc, telephone communication with the child. However, at least inferentially, he did so in conjunction with his proposal for the child to regularly spend substantial amounts of time in his care. He did not address the situation of whether it would be beneficial for the child to maintain telephone communication with him when the child spends no time with him. Given the finding that the child presently has no meaningful relationship with the father it is difficult to imagine how it would benefit the child to maintain telephone communication with a person largely unknown to him. The child’s interest in the communication would inevitably wane, in which event the father would need to accept that fact without objection or seek to enforce it and thereby start fresh litigation. Consequently, no order is made for telephone communication between the child and father.

7. The father will undoubtedly be disappointed by effectively being shut out of the child’s life so, in expectation he would like to remain appraised of the child’s progress, the orders make provision for him to obtain reports about the child’s scholastic performance and photographs of him taken periodically at his pre-school and school. Neither the mother nor child could be harmed by the father taking advantage of an order to that effect.

8. Although the mother will have sole parental responsibility for the child, an order is made expressly providing authority for her to change the child’s surname, since that was a discrete area of dispute. The mother wanted to change the child’s surname to match B’s surname, but it would be better for the child’s surname to match the mother’s surname, which was her alternate suggestion. The only apparent reason for why the child should identify with the surname B inherited from her own biological father is that the mother’s two children would then have the same surname. That is not a sufficient reason, because surnames connote the child’s origin. The child’s heritage lies with the parties and, if his surname is not to be common with the father’s, it should be common with the mother’s. In cross-examination, the father said it would be “fair enough” if the child’s surname was changed to match the mother’s surname, but he objected to the child taking the same surname as B. At present, the child has a different surname from both his mother and his sibling. In circumstances where the father, whose surname he presently uses, will have no active participation in his life for the foreseeable future, it would be better for the child to use the same surname as the mother.

9. The mother[72] and the Independent Children’s Lawyer[73] sought other orders which were not the subject of any cross-examination or submission, so they are not made. If they were not worth mentioning they are not worth making. There is no need for some of those orders in any event, given the mother’s conferral with sole parental responsibility for the child.

   [72] Amended Initiating Application filed 2/8/18, Orders 6, 7, 10, 11

   [73] Exhibit ICL6, Orders 5, 6, 8, 9

I certify that the preceding 77 (seventy-seven) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 24 September 2018.

Associate: 

Date:  24 September 2018