Chou and Parsons
[2020] FamCA 70
•11 February 2020
FAMILY COURT OF AUSTRALIA
| CHOU & PARSONS | [2020] FamCA 70 |
| FAMILY LAW – CHILDREN – Interim Parenting – Where final orders were previously made that children live with mother and spend substantial and significant time the father – Where the father is charged with serious violent sexual offences and cultivating prohibited plant on his premises – Where the mother seeks previous final orders made be discharged and that the children have no contact with the father – Where the father seeks previous final orders made be reinstated – Where Independent Children’s Lawyer proposes that the children spend supervised time with the father – Orders made that the children spend no time with the father. |
| Family Law Act 1975 (Cth) ss 60CA, 60CC, 65D |
| Deiter & Deiter [2011] FamCAFC 82 George & George [2013] FamCAFC 182 Goode & Goode (2006) FLC 93-286; (2007) 26 Fam LR 422; [2006] FamCA 1346 Mazorski & Albright [2007] FamCA 520 McCall & Clark (2009) FLC 93-405; (2009) 41 Fam LR 483; [2009] FamCAFC 92 SS & AH [2010] FamCAFC 13 |
| APPLICANT: | Ms Chou |
| RESPONDENT: | Mr Parsons |
| INDEPENDENT CHILDREN’S LAWYER: | JLM Family Lawyers Pty Ltd |
| FILE NUMBER: | PAC | 4424 | of | 2013 |
| DATE DELIVERED: | 11 February 2020 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Hannam J |
| HEARING DATE: | 4 October 2019 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | Forshaw Lawyers |
| SOLICITOR FOR THE RESPONDENT: | In Person |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | JLM Family Lawyers Pty Ltd |
Orders
Pending further order
The children B born … 2012 and C born … 2013 (“the children”) shall live with the mother.
The mother shall have sole parental responsibility for the children.
The children shall spend no time and have no communication with the father by any means including through a third party.
Orders 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 20 and 21 of orders made on 10 February 2017 are discharged.
Pursuant to s 68B of the Family Law Act 1975 (Cth) (“the Act”) the father, Mr Parsons, shall be and is hereby restrained from contacting the mother Ms Chou or the children by any means whatsoever and shall be further restrained from approaching any residence at which the mother or the children reside from time to time, any place of employment, school, vacation care or similar service provided to the children or being within 100 metres of such premises.
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 Chou & Parsons 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 PARRAMATTA |
FILE NUMBER: PAC 4424 of 2013
| Ms Chou |
Applicant
And
| Mr Parsons |
Respondent
REASONS FOR JUDGMENT
Introduction
On 13 August 2019 the mother commenced parenting proceedings for a second time in relation to the two children of her relationship with the father.
In the course of the first proceedings commenced in 2013 the children were cared for under various parenting arrangements and the parenting dispute was ultimately resolved by way of orders made in February 2017 (“the 2017 orders”). Those orders provided for the children to live with the mother and spend substantial and significant time with the father, and for the mother to have sole parental responsibility for the children.
The children then lived with the parents in the care arrangement provided for under the 2017 orders until 16 July 2019 when the father was arrested for serious violent sexual offences and cultivating cannabis at his home.
The mother then commenced proceedings seeking to revisit the 2017 orders, proposing a regime that would effectively excise the father from the children’s lives.
It is the mother’s case that the father poses an unacceptable risk of harm to the children in light of the conduct for which he has been charged which she contends is of a most serious nature. She also contends that the risk posed by the father, particularly psychological harm to the children, may not effectively be mitigated by supervision of his time with them even on an interim basis.
The father seeks that the 2017 orders (which are currently suspended on a short-term interim basis) be reinstated and maintains that he does not pose any risk of harm to the children. He intends to defend all the criminal charges against him. He further contends that the children would derive a “substantial benefit” from a meaningful relationship with each parent.
The Independent Children’s Lawyer (“ICL”) observes that prior to the father’s arrest the children have shared meaningful relationships with him and contends that they receive a benefit from those relationships. The ICL also recognises the potential risk posed by the father and proposes that the children spend limited time with the father to sustain the relationships, but that his time be supervised by a contact service to mitigate the risk he poses to them.
The question for me to determine is which of these alternate proposals is proper having regard to the best interests of the children being the paramount consideration.
Background
The parties were married in 2009 and over the course of their four year marriage had one child. Their second child was born after separation. The older child is a boy now aged seven and the younger child is a girl aged six.
The first parenting proceedings
The first parenting proceedings were initiated by the mother in the Federal Circuit Court shortly after parties separated on a final basis in May 2013.
At this time the parties’ son (“the older child”) was living with the father under circumstances which were in dispute and the mother sought an order for the recovery of that child. After attending upon a Family Consultant in November 2013 interim orders were made with the consent of the parties that the older child live with the father and spend time with the mother for two nights per week.
Not long after the November 2013 interim orders, the mother gave birth to the parties’ daughter (“the younger child”) but the father did not see this child until orders were made in February 2014 providing for him to spend time with her for two and a half hours twice a week.
Throughout the first proceedings the father contended that the mother posed an unacceptable risk of harm to the children and ultimately sought orders that he have sole parental responsibility for the children and that they live with him.
The general tenor of the father’s evidence was that the mother had physically abused the children or failed to protect them from injury in the past and had also failed to protect them from being sexually abused in her household. His allegations were not corroborated by medical evidence. Rather he relied heavily on the propensity of the children to present with minor and superficial bruises and scratches when returned from the mother’s care, and to a greater extent, on disclosures said to have been made by the older child.
The paternal grandmother also deposed to observing unexplained injuries suffered by the children and witnessing disclosures made by the older child concerning the alleged physical abuse.
For reasons outlined in the Reasons for Judgment delivered on 10 February 2017[1] (“the 2017 Final Judgement”), I was not satisfied that the mother had physically abused the children or neglected them when in her care.
[1] Chou & Parsons [2017] FamCA 65.
In late October 2015 after the proceedings had been transferred to this Court, the father claimed that the older child made a disclosure of being touched “in the wee wee in bed” in the mother’s household. The father also alleged that he observed “bruising on [the younger child]’s inner thighs, at the top of her legs adjacent to her private parts” at this time. Both children were presented by the father to a hospital for medical examination and were not returned by him to the mother’s care for a period of about six weeks contrary to the then interim parenting orders.
When the older child was interviewed by the Joint Investigation and Response Team (JIRT)[2] on 11 and 16 November 2015 regarding his alleged complaints, this child made no disclosures of sexual harm by anyone. Police records produced on subpoena indicated that despite being provided a copy of a recorded conversation between the father and the older child in which it appears the child had made a disclosure, JIRT officers concluded that there was “no evidence to support that [the child] had been indecently assaulted”.
[2] The Joint Investigation and Response Team was made up of officers from Community Services and police and investigated complaints of sexual abuse and serious physical abuse of children.
In addition to these findings made by JIRT and the Department, I also held concerns about the accuracy of the father’s and paternal grandmother’s evidence regarding the disclosures alleged to have been made by the older child. I also was of the view that the unreliability of the older child’s accounts made it doubtful that sexual abuse of the children occurred. I was not satisfied to the appropriate standard that either of the children were sexually abused in the mother’s household as the father contended, or that there was any unacceptable risk that this would occur in the future.
Aside from allegations of physical harm, neglect and sexual abuse made against the mother, the father also maintained in the earlier proceedings that there was an unacceptable risk that the mother may physically abuse the children by way of excessive discipline. For the reasons given in the 2017 Final Judgment I did not assess the mother as posing an unacceptable risk of harm on this basis.
Although the mother throughout the initial proceedings held concerns about the risk posed by the father in light of his alleged history of family violence, at final hearing she did not press a case that he posed an unacceptable risk of harm to the children on this basis. She ultimately adopted the ICL’s proposal that she have sole parental responsibility for the children and that they live with her and spend time with the father on a gradually increasing basis.
Given the high levels of conflict between the parents and as there was no prospect of communication or cooperative decision making between them, I was of the view that it was in the best interests of the children for parental responsibility to be allocated to the parent with whom the children were to primarily live.
Ultimately, I was of the view that there were greater concerns about the father’s capacity to be attuned to the needs of the children than was the case with the mother. Further, I attached particular weight to the father’s negative attitude towards the mother and her parenting capacity in making final orders that the children live primarily with the mother and that she hold parental responsibility for them. Under the final orders the children were to spend time with the father over an increasing regime of significant time, to ensure that they would continue having a meaningful relationship with him, which I assessed at that time as beneficial for them.
The children then lived in the arrangement provided for under these orders from the time that they were made until 16 July 2019.
The mother deposes to the father generally complying with these orders until his arrest, with the exception of orders relating to the children’s surname which is not of current relevance.
The father’s criminal charges
The father was arrested and charged in July 2019.
According to the Police Facts Sheet dated 25 July 2019, he is accused of serious violent sexual assault offences and of cultivating cannabis at his premises.
With respect to the sexual assault offences, the father is accused of placing an advertisement for a live-in cleaner at his home under a fictitious profile name. It is alleged that in around March 2019, this advertisement was answered by an international female student and that when she was employed and established in the father’s home, she became victim to a series of violent sexual assaults perpetrated by the father.
The first sexual offence is alleged to have occurred in early May 2019. On this occasion the father is accused of intoxicating the victim and proceeding to have sexual intercourse with her without her consent as she passed in and out of consciousness.
It is also alleged that the father filmed the sexual act with the victim, without her knowledge or consent. The victim was only informed of this the next day when the father is alleged to have told her that they had sex together the previous evening and that he had made a video of this event which he could show to her parents and friends.
The father is alleged to have perpetrated a further aggravated sexual assault against the same victim in early June 2019. On this occasion he is accused of approaching her for sex and the victim had genuine fears that if she did not comply with the father’s request he would circulate the video of their sexual act. According to the complainant, when she first declined the father’s request for sex he responded with words to the effect of, “if you don’t listen to me, if you don’t do it, you know what I’m capable of”. As a result of her fear, she did not resist the sexual intercourse.
From June 2019 it is alleged that the father had unsolicited and non-consensual intercourse with the victim every one to two days, up to three times a day. On each occasion the father threatened to circulate the video amongst her family and friends. Other threats reported by the victim include the father telling her words to the effect of “you’re just a student. I’m an Aussie. I can do anything. If I murder someone it will only be 5-7 years. You can’t do anything to me”. On at least one occasion the assault is alleged to have occurred in the victim’s locked bedroom at the father’s home that he accessed with a master key. Otherwise, the conduct took place in the father’s bedroom.
On 11 July 2019 the victim told the father she would be leaving his premises the following day due to his behaviour. It is alleged that the father responded with words to the effect of “you’re leaving tomorrow. I’ll make you suffer so much you’ll not forget all your life”, before brutally sexually assaulting her. The victim reports leaving the father’s premises the next day.
Three days later, it is alleged that the father sent the victim abusive messages and threatening again to send explicit photos and videos to her family and friends.
Another message alleged to have been sent by the father on 15 July 2019 contained the words “you fucking maggot, if I don’t hear from you tomorrow, I will fucking send this and the video I have to your parents”. An image attached to this message depicted the victim sleeping with a male dangling his penis above her head.
On the same day, it is alleged that the father distributed the video of the sexual act to the victim’s parents and one of her close friends without her consent. Upon learning from a friend that the video had been distributed, the victim reported the matter to police.
The other criminal offence with which the father has been charged, namely cultivating cannabis, arose from the presence of a number of cannabis plants and implements and paraphernalia for cultivation found in the garage of the father’s home when he was arrested.
The father’s arrest
When the father was arrested in July 2019 the children were spending holiday time with him in accordance with the 2017 orders.
Differing accounts of the father’s arrest are given. The father deposes to returning home with the children from a shopping trip and in the midst of carrying groceries from his car into his home being met by police officers and being unable to return to the car to bring the children inside. On the mother’s evidence, the older child recounted to her seeing police cars in the street and the father “stop[ing] the car and run[ning] inside the house and clos[ing] the curtains”, leaving the children in the car to witness police yell the father’s name.
The mother resumed care of the children after a police officer attended her home and informed her of the father’s arrest and their concerns that the father may have exposed the children to pornographic material. The mother immediately collected the children from the police station and deposes to observing the children in a very distressed state. She also contends that for the next few nights following the father’s arrest the children remained unsettled by this event.
The father was initially refused bail and spent about three weeks in custody.
On 17 July 2019 the Department received a report detailing the father’s alleged sexual offences. In this report it was also stated that a second victim had come forward who witnessed the father exposing the children to pornographic material. According to the Magellan Report dated 18 September 2019, the children were assessed to be “at significant risk of sexual abuse when staying with their father”.
The Department assessed the presence of cannabis at the father’s premises as raising substantial concerns about the provision of basic care for the children, given the possibility that they may access the illegal substances. It was considered that the children’s living conditions with the father were “hazardous”.
It appears that the children were interviewed by JIRT on about 18 July 2019. The mother asserts that after the interview the older child disclosed to her that at the father’s home both children slept in the same bed as the father and two other females. During a later interview conducted by police on 18 August 2019, the children confirmed that they shared a bed with their father and one of the alleged victims. In his affidavit the father denies ever sleeping in the same room and bed as the children and two other females.
On 23 July 2019 a safety assessment of the mother’s household was conducted. After observations of the children and an inspection of the mother’s house, it was concluded that the children were “well cared for” and “safe living with [the mother]”. Attempts were also made by the Department to conduct a safety assessment on the father’s household. However, due to the father being in custody, this assessment did not take place.
On 6 August 2019, the father was released on bail and the following day attended a school event at the children’s school accompanied by the paternal grandmother. On 9 August the father attended at the school again with the paternal grandmother with the intention of taking the children into his care for five days in accordance with the 2017 orders. The mother who was concerned about this occurring had kept the children at home.
Although it is difficult to understand the approach of police to this matter, the mother was unsuccessful in seeking an Apprehended Domestic Violence Order (ADVO) for the protection of herself and the children. She was however able to organise emergency accommodation for herself and the children through the “Staying Home Leaving Violence” program and thereafter did not facilitate the children’s contact with the father.
On 13 August 2019 the mother filed an Initiating Application seeking orders including that the children live with her and spend no time with or communicate with the father on an interim and final basis.
On the same day the application was considered by a Registrar. Upon review of the Notice of Abuse filed by the mother in support of her application which detailed the circumstances of the father’s arrest, the matter was allocated into the Magellan program[3] and was subsequently listed on short notice before me for the following day.
[3] The Magellan program is a fast–track Case Management program in the Family Court that deals with serious allegations of physical and sexual child abuse. A Magellan report sets out the involvement of The Department with the family.
Both parents appeared at the court event on 14 August 2019. On that occasion short-term interim orders were made as sought by the mother suspending the father’s time with the children and restraining him and the paternal grandmother from having any contact with the children and the mother by any means pending a more complete interim hearing.
From this date, the children returned to school and it is understood from the mother’s affidavit that both of them have received support from the school counsellor.
On 4 October 2019, I heard the competing applications in relation to interim parenting arrangements to which these Reasons relate.
At the interim hearing the mother pressed for orders identical to those sought in her Initiating Application and the father sought to have the 2017 orders reinstated or that he otherwise spend significant and gradually increasing time with the children supervised by the paternal grandmother. At the time of the hearing, it was also understood that the father’s criminal proceedings were ongoing with a committal hearing yet to be heard. As discussed, the ICL proposed orders that the children spend some limited supervised time with the father at a contact centre. There was no evidence to the effect that a place at a contact centre was currently available or whether any enquiries had been made in this regard.
The law & discussion
The relevant principles in relation to parenting and interim proceedings are set out in Goode & Goode[4].
[4] (2006) FLC 93-286, (2007) 26 Fam LR 422, [2006] FamCA 1346.
In applying the law to the facts, the Court must uphold the relevant objects and principles in the part of the Family Law Act dealing with parenting.
Pursuant to s 65D(1), subject to certain provisions which are not relevant here a Court may make such parenting order as it thinks proper.
Section 60CA provides that in deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of the child as the paramount consideration.
In Deiter & Deiter[5], the Full Court said when making an interim order a Court should have regard to its likely duration, especially in cases where the interim order under consideration involves some disadvantages which may need to be endured by the children.
[5] [2011] FamCAFC 82.
In circumstances such as these, the father’s criminal proceedings must be complete prior to the final parenting proceedings as the Court may not gain complete information in relation to the best interests of the children without causing the father prejudice to his criminal proceedings, and the circumstances such as the father’s liberty may change depending upon the outcome of the criminal proceedings. There is little information about the progress of the father’s criminal proceedings other than that at the time of the interim hearing he had been released on bail and a committal hearing was yet to take place. As it is unclear when the father’s criminal proceedings will be complete, it is likely that the interim parenting arrangement under consideration will be in place for at least many months and possibly much longer.
The best interests of the children are determined by a consideration of the matters set out in s 60CC of the Act.
The primary considerations: s 60CC(2)
The primary considerations, which are contained in s 60CC(2), are:
a)The benefit to the children of having a meaningful relationship with both of the children’s parents; and
b)The need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
These proceedings exemplify the difficulties that may arise when applying the two primary considerations to the circumstances of an interim application. In applying these considerations, I also am mindful of the requirement under Section 60CC(2A) to give greater weight to the need to protect the children from harm than to the benefit to them of having a meaningful relationship with both parents.
The expression “meaningful relationship” which is not defined in the Act has been interpreted in a qualitative rather than a quantitative sense as a relationship which is “important” or “significant”[6]. This consideration has not been interpreted as creating a presumption that a child does receive a benefit from having a meaningful relationship with both parents. The objects of Part VII of the Act are also to ensure that children have the benefit of both of their parents having a meaningful involvement in their lives to the maximum extent consistent with their best interests.
[6] McCall & Clark (2009) FLC 93-405; (2009) 41 Fam LR 483; [2009] FamCAFC 92; Mazorski & Albright [2007] FamCA 520 at [26].
The Full Court said in McCall & Clark (supra) at [117]:
Bennett J discussed the terminology in G & C [2006] FamCA 994 and said the enquiry was a “prospective” one which requires a court to evaluate the extent to which a meaningful or significant relationship with both parents is going to be of advantage a child (sic).
The Court continued at [122]:
No doubt in the majority of cases there will be a positive benefit to a child of having a significant relationship with both parents, but there will also be some cases where there will be no positive benefit to be derived by a child by a court attempting to craft orders to foster a relationship with one parent if this would not be in the child’s best interests.
It is contended on the father’s behalf that if the children are to continue to live with the mother and spend no time with him as she proposes, they will be deprived of the benefit of having a meaningful relationship with him. While the mother concedes that the children have enjoyed a meaningful relationship with the father up until his arrest, it is her case that any benefit to them of having contact with him pales against the serious criminal charges he faces. She also contends that the father’s proposal of reinstating the 2017 orders which would see him spending substantial and significant time with the children, would place the children at an unacceptable risk of harm.
At the interim hearing, the father appeared to proceed on the assumption that the children do receive a benefit from having a meaningful relationship with him and will continue to do so in the future. In written submissions made on his behalf, extracts were also taken from the opinion of an expert engaged in the earlier proceedings concerning the children’s positive relationship with the father a number of years ago. The father through his legal representative did not engage at the hearing with the contention that a Court may ultimately find that there is no benefit to the children in having a meaningful relationship with him if he were to be found to have engaged in the conduct alleged against him.
The ICL likewise did not engage with the question of whether a Court may ultimately find that there is no benefit to the children in having a meaningful relationship with the father and the relevance of that matter at an interim hearing. While the second of the primary considerations, the need to protect the children from harm and related risks, was explored by the ICL, the ICL otherwise proceeded on the basis that the children had meaningful relationships with the father at the time of the interim hearing (and the preservation of those relationships), rather than the question of whether the children receive a benefit from those relationships.
If the allegations against the father are found proved they amount to violent and repugnant behaviour of the highest order. In my view, if the father were found to have committed these acts against victims who were young, vulnerable and living his home while being employed by him, this would amount to a finding that he exhibited an absolute lack of empathy and would likely raise significant concerns about the pathological nature of his personality. A finding of guilt in the criminal proceedings would also undoubtedly lead to the father receiving a lengthy term of imprisonment, resulting in him not being available for the children and involved in their caregiving for many years. There is a real possibility, in my view, in these circumstances that a court may find ultimately that there is no benefit to the children in having a meaningful relationship with the father.
At this stage of the proceedings it is extremely difficult for an assessment to be made about the likelihood that the father will be found guilty of the offences with which he has been charged in the criminal proceedings. The police brief of evidence has not been tendered in the proceedings and nothing more than the outline of facts has been placed before me. However, I do attach some weight to the fact that the father has been charged and is placed on very strict bail conditions as providing some evidence as to the strength of the prosecution case. Further, while it may be that the charges against the father are not proved to the criminal standard, there may be sufficient evidence for them to be proved to the appropriate standard set out in s 140 of the Evidence Act 1995 in the parenting proceedings.
The serious allegations against the father are also highly relevant to the second of the primary considerations, the need to protect the children from harm. This is separate to the question of whether the children will receive a benefit from a meaningful relationship with the father if the allegations against him are found proved.
So far as the second of the primary considerations is concerned, any factual findings such as whether the father has engaged in the serious conduct with which he has been charged cannot of course be resolved at an interim hearing. However, the court may and in some circumstances must have some regard to matters in dispute at an interim hearing.
In SS & AH[7], the Full Court said at [100]:
Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.
[7] [2010] FamCAFC 13.
The mere fact that matters are in dispute does not mean the Court can ignore concerns that are raised in the material before it (see George & George[8], a decision of the Full Court citing Deiter & Deiter[9]).
[8] [2013] FamCAFC 182.
[9] [2011] FamCAFC 82.
In Deiter (supra) the Court was particularly concerned with the situation where the contested facts relate to an assessment of risk. It was said at [61]:
Risk assessment comprises two elements - the first requires prediction of the likelihood of the occurrence of harmful events, and the second requires consideration of the severity of the impact caused by those events. In our view, the assessment of risk in cases involving the welfare of children cannot be postponed until the last piece of evidence is given and tested, and the last submission is made. We accept, however, that it is always a question of degree depending on the evidence that is before the Court.
The harmful events contemplated by this subsection are that the children may be subjected to or exposed to abuse, neglect or family violence in the father’s care. If I considered that there is a real possibility that the children may be sexually abused, seriously psychologically harmed, or neglected, there would be no question that the impact caused by such events would be severe.
If I understand the father’s case correctly, he contends that the likelihood of the occurrence of harmful events as contemplated by this section is very low as he denies the conduct relating to the matters with which he has been charged. Further, the father appears to take the position that as these allegations do not relate in any way to abuse or neglect of the children or exposing them to family violence, there is no harmful event that impacts or is likely to impact upon them.
It is the mother’s case with which the ICL agrees that the risk of harm of the type contemplated in this consideration arises from the gravity and nature of the father’s alleged behaviour related to the circumstances of his alleged offences, which is likely to already have had detrimental impact on the children and which would have an impact upon them if it were to occur in the future.
In my view, there are a number of features of the father’s conduct which are relevant in assessing the likelihood of harm to the children from being subjected or exposed to abuse or neglect and the risk that this may occur in the future.
First, there is the risk that the father may engage in sexually violent conduct towards others to which the children may be exposed when spending time with him. The serious acts alleged against the father are said to have occurred at his home, a household in which the children have regularly spent time with the father, including during the period of time in which the behaviour is said to have occurred.
While the mother does not depose to the children making complaints after spending time with the father during this period, the children have subsequently reported that they came into direct contact with the victim or victims, in particular in the father’s bedroom, being the location in which he is said to have committed most of the offences.
The mother deposes to the older child reporting to her that both children, the father and a named female “sleep in the same bed” and that “sometimes [another named female] sleeps with us too”. She further deposes that this child disclosed to her that the father had told him that “[the two named females] have nowhere else to stay that’s why they sleep with us”. It is of significance, in my view, that although the names of the two females were unfamiliar to the mother, the father effectively confirms in his affidavit [paragraph 64] that women with these names were living in his household (albeit that he deposes to them sleeping in their own beds).
In an interview with Police on 18 August 2019, the children confirmed they shared the bed with the father and at least one of the female victims.
According to the Magellan Report, the Child Wellbeing Unit “held concerns that the children were present in the home while the father was sexually assaulting the victims”. This concern appears to me to have substance given the alleged regularity of the assaults taking place at the father’s home and that he had the children in his care for substantial periods of five consecutive nights in each fortnight and two blocks of four nights in each school holiday period. According to the police facts, the victim who was living in the father’s home was being subjected to sexual assaults by the father every one to two days up to three times a day from around June 2019 or about six weeks prior to his arrest.
There is also the risk that the children may themselves be the victims of the father’s sexually abusive behaviour. Although the main victim of the alleged criminal acts is an adult rather than a child, according to the police facts, she is vulnerable in that she is a student from a foreign country who was in financial distress and living in the father’s home. The offences are aggravated by the fact that the victim was under the authority of the father by reason of him being her employer. According to the statement of facts, after the first offence in which the father allegedly assaulted the victim after having drugged her and recorded his offence, the father not only effectively threatened to expose the video but told the victim that she should not “worry about it because I love you and I will marry you and I will take care of all your expenses”. In other words, it is alleged that the father was highly manipulative and saw himself as a person who was caring for the victim but using this apparent care as a threat to abuse her. These features of his alleged conduct are concerning when considering whether he may perpetrate sexual abuse against the children.
Police have also raised concerns that the children have been exposed to pornographic material. According to the Magellan Report, such an allegation was made by a second victim who came forward and reported that she “witnessed” the father showing pornographic videos to the children.
Another matter associated with the father’s care, which may be characterised as neglect and is likely to have had a detrimental impact upon the children that would continue if it were to occur again, relates to their exposure to the hazards of cannabis cultivation at the father’s home. There appears to be particularly strong evidence that the father has engaged in this conduct and it is difficult to understand his contention that this amounts to a false allegation.
It also appears highly likely that the children suffered emotional harm arising from their distress and confusion when they were present at the circumstances of their father’s arrest.
I accept that it is unlikely at this stage that the father would once again engage in cannabis cultivation or criminal conduct which may result in his arrest and consider that the low risk he poses associated with these matters alone could not justify a cessation of his time with the children.
However, when all of the foregoing risks are considered I am of the view that they are cumulatively unacceptable having regard to the likelihood of the harmful events occurring and in particular the severity of their impact upon the children if they were to occur.
The question then arises whether the risks posed by the father may be mitigated.
The father’s primary position is that the final orders of February 2017 be reinstated and that the children return to spending substantial and significant time with him. He proposes as an alternative to this position, that his time with the children be supervised by the paternal grandmother to mitigate any risk of harm posed by him.
In my view, the paternal grandmother is not a suitable supervisor with respect to risks arising from the father’s conduct, as she has at all times been strongly aligned with the father’s case, defensive of his conduct in the previous proceedings and engaged herself in a highly critical attitude towards the mother and her parenting.
The tenor of the father’s case in the previous proceedings and continues to be his approach as is clear in the written submissions made on his behalf, is that the focus of any concern about poor parenting practices or risks of harm should be on the mother and that there are no concerns about his own conduct.
The paternal grandmother’s evidence in the previous proceedings was entirely aligned with this position and there is no current evidence to suggest that she has any insight into the risks posed by the father towards the children.
A detailed summary in relation to the father and paternal grandmother’s position in the previous proceedings is apparent from the 2017 Final Judgment. It suffices at this stage to say that in those proceedings the paternal grandmother deposed to having concerns that the mother had physically abused the children as a result of the children presenting with minor bruises and scratches and accompanying the father to hospital to have the children medically examined. Despite the lack of medical evidence to suggest that the children had been injured in the mother’s care, the paternal grandmother continued to hold this view and on at least one occasion acted in concert with the father in withholding the children from the mother for some time contrary to the then interim parenting orders. For some months in early 2015 she also agreed with the father to make video recordings covertly of changeover between the parents in an attempt to evidence the children’s resistance to returning to the mother’s care, a contention which was not substantiated.
Some of the paternal grandmother’s beliefs about the mother’s neglect of the children in the previous proceedings were minor in the extreme, such as complaints about the children’s shoes being placed on the wrong feet or their fingernails being too long. For reasons given in the 2017 Final Judgment, serious findings about the paternal grandmother’s credit were made in relation to her evidence concerning alleged disclosures of sexual harm in the mother’s care.
In summary, in the earlier proceedings the paternal grandmother shared the father’s uncompromisingly negative attitude towards the mother, made trivial complaints about the mother’s parenting capacity and demonstrated finding little value in the mother’s culture and traditions. As there is no suggestion that the paternal grandmother’s position has changed, I do not consider her to be an appropriate supervisor, as I find it unlikely that she has any understanding of the risks posed by the father and she cannot be relied upon to act protectively if any concerns about his conduct occurred in her presence.
I cannot and do not make any definitive findings about the father’s alleged conduct. There is evidence however, which if accepted, indicates that the children may have been present in the household when the father was engaged in the sexual abuse of the victim or victims, that the children slept in the same bed as the victims and that the children were exposed to pornographic material. These matters raise concerns at the very least about the father’s boundaries with the children.
In my view, in these circumstances real questions arise as to whether any supervision even in the confines of a contact centre could effectively mitigate all of the domains of harm potentially posed by the father. Further, as discussed when considering the first of the primary considerations, there is a real question as to whether it ultimately would be found that the children do and will receive a benefit from having a meaningful relationship with the father. For these reasons, it would be inappropriate for the children to be effectively required to be brought into contact with the father pending final resolution of the dispute, a period of time that may be lengthy.
In his written submissions the father relies upon historical information given many years ago to the expert then appointed, with a view it seems, to suggest that there may be harms associated with the mother’s neglect of the children. These matters have no relevance to the current proceedings, especially where they appear to traverse findings made in the previous proceedings. There is no evidence to suggest that the mother poses any risk of harm to the children.
The additional consideration: s 60CC(3)
Section 60CC(3) sets out additional considerations, a number of which are not able to be applied at this stage in the proceedings and I will refer to those which are able to be applied and are relevant.
The matters raised in the father’s submissions about views expressed by the children many years ago in the previous proceedings are not relevant to this interim application. The current views of the children are unknown.
It appears beyond dispute that to date the children have had a meaningful relationship with the father given the pattern of care and role he has played in the children’s lives. I am of the view, however, that little weight should be attached to that matter given that a court may find that the children receive no benefit from those relationships.
I attach no weight to the evidence of the expert in the previous proceedings as to the children’s then relationships with each parent as that opinion was formed in different circumstances, many years ago. For the reasons given in the 2017 Final Judgment the recommendations of the expert as to the children’s parenting arrangement were not followed and since 2017 the children’s circumstances have changed including in particular that they have lived primarily with the mother. In these circumstances, it may be expected that the nature of their relationships have changed.
Further, the father has spent no time with the children since his arrest almost seven months ago. The nature of his relationship with the children must be reconsidered in all of the changed circumstances.
Since the February 2017 orders the mother has been the children’s primary caregiver and their sole carer after orders were made suspending the children’s time and contact with the father following his arrest. It can be assumed that she has primary attachment relationships with the children.
It can also be assumed that prior to the father’s arrest the children also shared a meaningful relationship with the paternal grandmother who assisted the father in his care of the children. The mother raises concerns about the paternal grandmother’s attitude towards her and her capacity to care for the children. Although the paternal grandmother has not provided evidence in response to the mother’s current claims, as discussed earlier, she has displayed an aversion towards the mother which is likely to have had an influence on the nature of the relationship she shares with the children.
A salient matter to which considerable weight is attached is the likely effect of any changes in the children’s circumstances that will be brought about if the respective proposals of the parties were implemented through the respective orders sought in this application.
It must be remembered however, that the most significant change for the children in their lives to date occurred when the father was arrested in July 2019 and shortly thereafter they ceased spending any time with or having contact with him. Prior to that date he had played a significant role in their care as they lived with him for five days each fortnight and for around half of each school holiday period.
It is the mother’s evidence that the children experienced anxiety, distress and confusion from being exposed to the circumstances of the father’s arrest and have since attended upon the school counsellor to address their experience of ‘loss’ of their father. I consider it likely that the children have continued to experience some ongoing sense of loss of the relationship with their father and paternal grandmother.
There is no evidence to support the assertions made in written submissions on behalf of the father that the children are being adversely affected or “not thriving” in the sole care of the mother. The children have been living primarily with the mother for over two years and solely with her for about seven months, and there is no suggestion of any concerns about her care. The mother’s household was also assessed by officers from the Department in July 2019 and it was concluded that the children were well cared for and safe living with her.
Having regard to the risks of harm posed by the father discussed at length in these Reasons, any return to the parenting arrangement under the 2017 orders would be detrimental to the children’s wellbeing and welfare. For the reasons given, any arrangement in which the children’s time with their father is to be supervised by the paternal grandmother would also not adequately protect them from the unacceptable risks of harm he poses.
If interim orders were made as the ICL proposes, the children would resume spending time with the father but on a limited and supervised basis. This would likely, in my view, invite further confusion to the children as to why their time with the father is occurring within the confines of a contact centre. More fundamentally, it is not in the children’s best interests and would likely cause psychological harm for them to be brought into contact with a parent who poses such a level of risk to them. Further, as touched upon earlier, if the father were convicted of criminal offences and a term of imprisonment were imposed, it would be untenable for the children to have had the relationship with their father maintained for a period of time only to be discontinued again.
There are also practical difficulties (and most likely some expense) associated with the children spending time with the father at a contact centre. There is no evidence that there is currently a place at any contact centre especially as the children are school aged and their availability for supervised time with the father is more limited. There is also no evidence about current waiting lists and the like, and significantly whether a contact centre would be prepared to accept a parent utilising its services when facing charges of such a serious nature.
Finally, it appears to me that the father has not grasped the nexus between the allegations against him and his responsibilities as a parent. The entire tenor of submissions made on his behalf shows no insight into the issue of potential risk raised by his conduct. While it seems likely that the children were living in his home at times when the alleged offences occurred, and seemingly beyond dispute that the father was cultivating cannabis at that home, these matters are not addressed at all in his submissions. The father rather seeks to cast the mother as an irresponsible parent relying on matters that occurred many years ago that were fully canvassed and considered in the earlier proceedings and on the mother’s current alleged contravention of court orders. In my view, the mother’s conduct in withholding the children from the father in contravention of court orders following his release on bail would be likely assessed as entirely reasonable and responsible in the circumstances.
Conclusion
Although I accept that the proposal of the mother will bring about a cessation of the father’s relationship with the children at least until the completion of his criminal proceedings, there is a real question as to whether the children would receive a benefit from having that meaningful relationship with the father in the circumstances under consideration.
Further, the need to protect the children from physical or psychological harm from being subjected to or exposed to abuse or neglect looms large in these proceedings.
For the reasons given, I am of the view that the father poses an unacceptable risk of harm to the children which may not be necessarily mitigated by supervision at a contact centre, even if I were satisfied that a contact centre were available.
For all of the foregoing reasons, I am of the view that the proper orders which meet the best interests of the children in the current circumstances are those proposed by the mother with two exceptions. First, I do not propose making the order restraining the paternal grandmother from contacting the mother and the children pursuant to s 68B of the Act. The mother’s legal representative made no submissions about the necessity for such an order at the interim hearing. The risk posed by the paternal grandmother is that she may bring the children into contact with the father, which is addressed by an order that the children spend no time and have no communication with him “by any means including through a third party”. Further, there are no orders for the paternal grandmother to spend time with or have contact with the children. I also do not propose discharging the order requiring both parties to do all things and sign all documents necessary to change the children’s surnames. For reasons given in the 2017 Final Judgment such an order is in the best interests of the children and both parents remain bound by it.
I certify that the preceding one hundred and nineteen (119) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 11 February 2020.
Associate:
Date: 11 February 2020
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