Combs and Combs

[2019] FamCA 248

FAMILY COURT OF AUSTRALIA

COMBS & COMBS [2019] FamCA 248

FAMILY LAW – CHILDREN – Undefended hearing – Where the mother’s proposal is to cease all contact and communication between the children and the father – Where the father proposes the mother have sole parental responsibility for the daughter, but the parties’ have equal shared responsibility for the son – Where the father has been convicted of sexually assaulting the daughter in the family home – Where the Family Reporter recommends there be no contact between the father and either of the children – Where the court satisfied the father presents a current risk of sexual harm to both children – Where child’s wishes outweighed by risk to him from a continued relationship with his father –  Order for sole parental responsibility to the mother for both children – Order that neither child spend time or communicate with the father.

Family Law Act 1975 (Cth) ss 4, 4AB, 60B, 60CA, 60CC, 61DA, 65DAA, 65DAC
Evidence Act 1995 (Cth) ss 140

Banks & Banks [2015] FamCAFC 36
Mauldera & Orbel (2014) FLC 93-602
Wacando v The Commonwealth (1981) 148 CLR 1
S v Australian Crime Commission (2005) 144 FCR 431
Neat Holdings Pty Ltd v Karajan & Holdings Pty Ltd (1992) 67 ALJR 170
N & S & The Separate Representative (1996) FLC 92-655
M v M (1988) 166 CLR 69
Harridge & Harridge [2010] FamCA 445
Re Andrew (1996) FLC 92-692

APPLICANT: Ms Combs

RESPONDENT: Mr Combs

INDEPENDENT CHILDREN’S LAWYER: Ms Cope

FILE NUMBER: CSC 149 of 2017

DATE DELIVERED: 18 April 2019

PLACE DELIVERED: Cairns

PLACE HEARD: Cairns

JUDGMENT OF: Tree J

HEARING DATE: 4 March 2019

REPRESENTATION

SOLICITORS FOR THE APPLICANT: Smithfield Law

THE RESPONDENT: No appearance

COUNSEL FOR THE INDEPENDENT

CHILDREN'S LAWYER:

Mr Victoire

SOLICITORS FOR THE INDEPENDENT CHILDREN'S LAWYER: Cope Family Law

Orders

1. All previous parenting orders in these proceedings are forthwith discharged.

2. The mother is to have sole parental responsibility for X born … 2005 and Y born … 2006 (“the children”).

3. The children are to live with the mother.

4. The father is hereby restrained from having any contact whatsoever (whether direct or indirect) with the children.

5. The father is hereby restrained from removing the children from the mother’s care, or, any place or institution (including school or after school care) where the children are.

6. Within 7 days the Independent Children's Lawyer is to arrange for herself and Ms B to explain these orders to the children.

7. Upon the children having the orders explained to them under Order 6 hereof, the Independent Children's Lawyer is discharged with the thanks of the Court.

8. Otherwise all extant applications are dismissed and the matter is removed from the list of active pending cases.

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 Combs & Combs 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 CAIRNS

FILE NUMBER: CSC149/2017

MS COMBS

Applicant

And

MR COMBS

Respondent

REASONS FOR JUDGMENT

INTRODUCTION  

1. These proceedings concern the appropriate parenting arrangements for two children, X (born in 2005 and hence presently 14 years of age) and Y (born in 2006 and hence presently 12 years of age) (“the children”).

2. As ultimately formulated, Ms Combs (“the mother”) sought orders that she have sole parental responsibility for both children, who would live with her, and neither spend time nor communicate with Mr Combs (“the father”).  She justified those orders on the basis that the father presented an unacceptable risk of harm to the children, and “no contact” orders were in their best interests. 

3. For his part, the most recent articulation of orders which the father sought was in his Response filed 17 March 2017.  There he proposed that the mother have sole parental responsibility for Y, but that the parties have equal shared parental responsibility for X.  Although he proposed that Y would have no contact with him except with the written consent of the mother (and him being permitted to provide written communication to Y to be vetted by the mother) in relation to X, he proposed that he live with the mother, but spend alternate weekend and half school holiday time with him, together with time on special days.  It would seem implicit in the orders sought by the father that he concedes that he is an unacceptable risk of harm to Y, but not to X.  If it be that there was such a concession made by him, it likely arises from his conviction of having sexually assaulted Y in the family home on several occasions.

4. For her part, the Independent Children's Lawyer supported the orders as formulated by the mother.

5. The trial of these parenting proceedings was listed to commence before me on Monday 4 March 2019, however the father, who for some time had disengaged from the proceedings, did not then appear, and counsel for the Independent Children's Lawyer advised me that, when contact had been made with him earlier that day, he advised he did not intend to appear.  Accordingly, the matter proceeded by way of Undefended Hearing.  At the conclusion of that hearing, I pronounced final orders but reserved my reasons for making them.  These are those reasons.

BACKGROUND FACTS

1. The father was born in 1972, and hence is presently 46 years of age.  The mother was born in 1975, and hence is presently 43 years of age.  It is unnecessary to traverse their lives in great detail, however it is important to identify that the father says he was sexually abused by an adult male at the age of 13, and likely in consequence of that, commenced drinking alcohol at age 14.  He conceded to Ms B, the Family Consultant who prepared the Family Report in this matter, that he was also a heavy user of marijuana from about the age of 17.  The father has thereafter maintained a constant association with alcohol and a variety of drugs, on the evidence, even as recently as last year.

2. The parties commenced a relationship in 2003, married in 2004 and separated in January 2016.

3. It seems clear that the parties’ relationship was affected by the father’s use of alcohol and other drugs, which likely was a factor in the occasional incidents of domestic violence between the parties.  A Protection Order was issued between the parties in 2011, in which the mother was the aggrieved.

4. Associated with the father’s use of alcohol and drugs have been seemingly five convictions for driving under the influence of alcohol in New South Wales, and one in Queensland, together with occasional drug related convictions, including for possession of drugs and utensils.

5. Amongst the drugs which the father admits to having used during the course of the relationship are marijuana and a prescription pain killer.

6. The father’s alcohol and drug use made it difficult for him to maintain regular employment during the course of the relationship.  In consequence, the mother was the principal provider to the parties’ household.

7. In 2016, Y disclosed to the mother that she had been sexually abused by the father.  A few days later, Y was interviewed by police, and gave detailed evidence of a number of sexual assaults, and other occasions when the father had shown to her indecent images.  The father was subsequently charged with indecent treatment of Y, and on the same day the parties separated.

8. It is not in dispute that since that time Y has neither seen, spent time with, or communicated with the father, however initially it appears the father continued to spend time and communicate with X, although it is not clear on how many occasions.

9. The mother commenced these proceedings by application filed 9 March 2017.  Later in 2017 the father pleaded guilty to the offences in relation to Y in the District Court, and was sentenced to 18 months imprisonment, with an obligation to serve three months, followed by a period of probation. 

10. On 16 May 2017 Judge Willis made orders in these proceedings, prohibiting the father from having any contact with either child unless agreed to by the mother and the Independent Children's Lawyer.  Those remained the extant parenting order at the time of the trial before me.

11. In mid 2017 the father was released from jail on probation, the terms of which prohibited him from having any contact with a child under the age of 16 years during the term of his probation, which expires in 2019. 

12. On 10 October 2017 a psychologist, Mr C, interviewed both parties in the course of preparing a hybrid Sexual Risk Assessment and Family Report, which was released on 25 October 2017.  He did not interview either of the children.  He assessed the father as a low to moderate risk of sexually re-offending in the future, to both lineal and non-lineal descent children.  The child’s gender did not impact upon the risk.  Notwithstanding that assessment, he recommended that X (but not Y) recommence spending time with the father once X has had the opportunity “to acquire an array of self-protective skills which includes an understanding of the appropriate and inappropriate interactions between adults and children and to be armed with a safety plan which includes whom he can communicate his concerns with and whom he can go to and speak to if he does feel at risk.”  Mr C thought that time should initially be supervised (commencing when the father’s probation concluded) but ultimately move to unsupervised.

13. On 22 May 2018 I made an order for an updated Family Report, which was filed on 31 August 2018.  The new writer was Ms B, also a psychologist.  Unlike Mr C, she did interview the children.  Her recommendations were that there be no contact between the father and either of the children.

14. After the father had an opportunity to consider Ms B’s report, on 25 September 2018 I convened a Trial Management Hearing, at which time the father appeared and indicated that he intended, other than himself, to call four witnesses at the trial, which was listed for 4 March 2019.  However he complied with none of the procedural timetables for filing of material, and indeed appears not to have engaged in the proceedings at all since the Trial Management Hearing.

THE ISSUES

1. With the assistance of the parties, at the Trial Management Hearing on 25 September 2018, I identified that the following are the issues in this proceeding, in the sense that their determination is likely to substantially inform the outcome:

   1.What is the nature of the relationship between each parent and the children;

   2.What risk, if any, does the father/father’s household pose to the children and what, if any, means are available to mitigate such risk;

   3.Would the children benefit from a meaningful relationship with each parent, and if so, how might it best be facilitated;

   4.Would each parent facilitate a meaningful relationship between the children and the other parent;

   5.What are the respective parenting capacities of each party, and what is their ability to meet the needs of the children;

   6.What is the likely impact on the children of each parties’ proposal;

   7.Could the parties’ communication support equal shared parental responsibility.

2. However subsequently, given the father’s lack of participation in the proceedings, it seems to me that issue 4 has evaporated, and I do not propose to consider it further in these reasons.

3. Once I have addressed the relevant statutory provisions and legal principles, but in advance of a traverse of any residual s 60CC factors that remain relevant, I will traverse those issues, and then consider the appropriate parenting orders in this case.

RELEVANT STATUTORY PROVISIONS AND LEGAL PRINCIPLES

The statutory regime

1. Part VII of the Family Law Act contains the relevant statutory provisions dealing with children. Section 60B specifies the objects of Part VII, and the principles underlying those objects in the following terms:

   (1) The objects of this Part are to ensure that the best interests of children are met by:

   (a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

   (b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   (c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   (d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

   (2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):

   (a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

   (b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

   (c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

   (d) parents should agree about the future parenting of their children; and

   (e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

2. Section 61DA(1) of the Family Law Act provides that the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. In the event that, either because that presumption applies, or because it is otherwise in the child’s best interests that there be an order providing for equal shared parental responsibility, the court is obliged pursuant to s 65DAA(1) to then consider certain matters, including whether the child should spend equal time with each of the parents, or substantial and significant time.

3. However s 61DA(2) provides that the presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in either abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family) or family violence. Further, subsection 61DA(4) provides that the presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for its parents to have equal shared parental responsibility.

4. In this context it is convenient to also advert to s 65DAC, which sets out the effect of a parenting order that provides for shared parental responsibility. By subsection (3) such an order is taken to require each of the persons subject to it to consult with the other person in relation to the decision to be made about any major long-term issue in relation to the child, and make a genuine effort to come to a joint decision about that issue. It can therefore be seen that the obligations which an order effecting equal shared parental responsibility imposes are potentially onerous.

5. Finally s 60CA provides that in deciding whether to make a particular parenting order, the court must regard the best interests of the child as the paramount consideration. The matters which a court must have regard to in determining the best interests of a child are set out in s 60CC. Consideration does not mean discussion: Banks & Banks [2015] FamCAFC 36 at [49].[1]

   [1] Although that case was in relation to interim orders, there is no reason to think it does not equally apply to final orders.

6. In Mauldera & Orbel (2014) FLC 93-602 the Full Court had occasion to consider the interrelationship between s 60B and ss 60CC. At [72] the Court applied the principles enunciated in Wacando v The Commonwealth (1981) 148 CLR 1 in concluding that objects clauses, such as those contained within s 60B(1) can be used as an aid to the construction of words of legislation, but cannot be used to cut down the plain and unambiguous meaning of a provision if that meaning in its textual and contextual surroundings is clear (quoting from S v Australian Crime Commission (2005) 144 FCR 431 at [22] per Mansfield J). At [79] the Court concluded that the primary Judge could not attach greater weight to the factors referred to in s 60B than to the outcome of her s 60CC deliberations, and in doing so, her Honour had erred.

Abuse, neglect and family violence

1. “Abuse” is defined in s 4 of the Family Law Act  in the following  terms:

   Abuse, in relation to a child, means:

   (a)      an assault, including a sexual assault, of the child; or

   (b) a person (the first person) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is unequal power in the relationship between the child and the first person; or

   (c) causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or

   (d)      serious neglect of the child.

2. Neither the term “neglect” nor indeed “serious neglect” appears to be defined in the Act; absent any indication in the Act to the contrary they should therefore have their usual dictionary meanings.  I can discern no contrary indication in the Act.  The relevant definition of the word “neglect” in the Macquarie Dictionary is “to be remiss in care for or treatment of.”

3. “Family violence” is defined in s 4AB(1) of the Family Law Act in the following terms:

   For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the persons family .. or causes the family member to be fearful.

4. Section 4AB(3) provides that for the purposes of the Act, a child is exposed to family violence if the child sees or hears family violence, or otherwise experiences the effects of family violence. Section 4AB(2) and (4) respectively give examples of behaviour that may constitute family violence, and examples of situations that may constitute a child being exposed to family violence.

The standard of satisfaction required

1. Section 140 of the Evidence Act 1995 (Cth) provides as follows:

   140(1) In a civil proceeding, the Court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.

   (2) Without limiting the matters that the Court may take into account in deciding whether it is so satisfied, it is to take into account:

   (a)      the nature of the cause of action or defence;

   (b)      the nature of the subject-matter of the proceedings;

   (c)      the gravity of the matters alleged.

2. In Neat Holdings Pty Ltd v Karajan & Holdings Pty Ltd (1992) 67 ALJR 170 at 170-171 the majority of the High Court stated:

   The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities.  That remains so even where the matter to be proved involves criminal conduct or fraud.  On the other hand the strength of the evidence necessary to establish a fact or fact on the balance of probabilities may vary according to the nature of what it is sought to prove.  Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary “where so serious a matter as fraud is to be found”.  Statements to that effect should not, however, be understood as directed to the standard of proof.  Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a Court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct.

1. Therefore consistent with s 140(2), in taking into account the gravity of the parties’ allegations against each other, I propose to carefully evaluate the evidence relied upon in support of such a contended finding and be particularly vigilant to identify and place reduced weight upon “inexact proofs, indefinite testimony or indirect inferences.”[2] 

   [2] See K v R (1997) 22 FamLR 592 and Re W (sex abuse – standard of proof) [2004] FamCA 768 at [15].

The notion of unacceptable risk

1. It is useful to consider the authorities which give some guidance as to what is an unacceptable risk, and particularly the relationship of any such risk with the orders that the Court is contemplating.  A useful starting point is the decision of the Full Court in N & S & The Separate Representative (1996) FLC 92-655, where in the well-known passage at 82,713-4, Fogarty J said:

   Thus, the essential importance of the unacceptable risk question as I see it is in its direction to Judges to give real and substantial consideration to the facts of the case, and to decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm to the child.  Thus, the value of the expression is not in a magical provision of an appropriate standard, but in its direction to Judges to consider deeply where the facts of a particular case fall, and explain adequately their findings in this regard.

2. In M v M (1988) 166 CLR 69, the High Court had occasion to consider the approach in Family Court proceedings albeit in the context of allegations of sexual abuse of a child. At [20] and [25] the Court said as follows:

   20. But it is a mistake to think that the Family Court is under the same duty to resolve in a definitive way the disputed allegation of sexual abuse as a court exercising criminal jurisdiction would be if it were trying the party for a criminal offence. Proceedings for custody or access are not disputes inter parties in the ordinary sense of that expression: Reynolds v Reynolds (1973) 47 ALJR 499; 1 ALR 318; McKee v McKee (1951) AC 352, at pp 364-365. In proceedings of that kind the court is not enforcing a parental right of custody or right to access. The court is concerned to make such an order for custody or access which will in the opinion of the court best promote and protect the interests of the child. In deciding what order it should make the court will give very great weight to the importance of maintaining parental ties, not so much because parents have a right to custody or access, but because it is prima facie in a child's interests to maintain the filial relationship with both parents: cf. J. v Lieschke [1987] HCA 4; (1987) 162 CLR 447, at pp 450, 458, 462, 463-464.

   …

   25. Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. The degree of risk has been described as a "risk of serious harm" (A v A [1976] VicRp 24; (1976) VR 298, at p 300), "an element of risk" or "an appreciable risk" (Marriage of M (1987) 11 Fam LR 765, at p 770 and p 771 respectively), "a real possibility" (B. v. B. (Access) (1986) FLC 91-758, at p 75,545), a "real risk" (Leveque v Leveque (1983) 54 B CLR 164, at p 167), and an "unacceptable risk" (In re G. (a minor) (1987) 1 WLR 1461, at p 1469). This imposing array indicates that the courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child's paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.

3. In Harridge & Harridge [2010] FamCA 445 Murphy J, having referred to N & S & The Separate Representative (supra), proceeded to adopt the following list of inquiries in relation to risk assessment:[3]

   (1) What harmful outcome is potentially present in this situation?

   (2) What is the probability of this outcome coming about?

   (3) What risks are probable in this situation in the short, medium and long term?

   (4) What are the factors that could increase or decrease the risk that is probable?

   (5) What measures are available whose deployment could mitigate the risks that are probable?

   [3] Taken from B Mahendra “Psychiatric Risk Assessment in Family and Child Law” (2008) 38 Family Law 569.

4. I gratefully adopt that passage as helpful in cases such as these in analysing the asserted risk.

“No contact” orders

1. It is self-evidently a serious matter to order that a child neither spend time with nor communicate with a parent.  “No contact” orders properly ought be restricted to cases where that outcome is plainly mandated in the best interests of the child, and no other regime of orders is appropriate or workable.  Such orders are commonly employed where the Court is satisfied that a parent poses an unacceptable risk of harm to a child, which cannot be ameliorated by supervision of time and communication between that parent and the child.  The authorities germane to that situation were reviewed by the Full Court in Re Andrew (1996) FLC 92-692.

2. However a Court would only permanently sever the relationship between a child and their parent with considerable hesitation.

ISSUE 1 – NATURE OF RELATIONSHIP BETWEEN PARENTS AND CHILDREN

1. Ms B opined at [88] of her Family Report that:

   Overall the siblings were observed having a strong positive attachment to each other and to their mother, whom they love and respect.  They are currently doing well at school and [Y] has just ceased counselling with her counsellor.

2. I am therefore satisfied that the children have an intact and positive relationship with their mother, from which they derive nurture, comfort and support.

3. Turning then to the children’s relationship with the father, Y has not spent time nor communicated with the father since January 2016 (ie more than three years).  The mother reported to Ms B that Y has always refused to see her father after her disclosure, but did not mind if X visited him, as “she (Y) was the one who was rejecting him.”

4. Y in her interview with Ms B is reported as having said:

   I don’t know what to feel.  I don’t know if I should love him or hate him.  It wouldn’t bother me if I saw him or not.  I don’t care … I accept what’s happened and I put it behind me…

5. I am satisfied that indeed Y has rejected the father, and there is no extant relationship between them, it having finally terminated in January 2016.

6. X’s relationship with his father is more complex.  It is not in dispute that he has not spent time or communicated with the father since May 2017 (ie approaching two years).  However he told Ms B that he still loves his father and wants to see him.  He said that, in the context of knowing that his father had sexually abused his sister, “I was shocked and confused (but) I’ve wrapped my head around it and he’s gone to jail for what he did. I think it was fair he went to jail.  I trust the judge made the right decision.”

7. However as I shall discuss in due course, concerningly X went on to describe that his father had told him that he cannot remember assaulting his sister, although he is aware that in his mother’s household there is a belief that the assault indeed occurred.  X told Ms B that he would be upset if he was not allowed to see his father as a result of these proceedings, but would not hold it against Y.

8. At [89]-[92] of the Family Report, Ms B said as follows:

   89. However from assessment, at the present time, whilst [X] does acknowledge his father’s sexual abuse of [Y], he also described dysfunctional coping behaviours developed to stop his internal conflict about his father being a “paedophile.”  Rather than deal with the perceived conflict caused by his father’s lack of memory (which is contradicted by his admission of guilt, his incarceration as well as by [X’s] belief that [Y] has been traumatised), [X] has decided to accept both parents’ version of events simultaneously.  That way, he does not “think or feel anything” and he can ignore his own personal “conflict” about it.

   90. Unfortunately, accommodating two competing realities at the same time can be potentially destructive.  If such contradictions are left unresolved, it can result in fragmented thinking; impaired capacity to reality test; possible cognitive distortion and cognitive dissonance and at the very least some degree of internalised confusion and disharmony.  Such a coping style will likely have a profound impact on him if it continued.

   91. The development of an integrated mindset and positive worldview is vitally important to healthy adult functioning.  Our thoughts and beliefs should be able to stand routine interrogation.  We all need to reflect upon our views and adjust our thinking accordingly.  Psychological mechanisms helping us avoid, minimise and deny reality (depending on the depth and degree), will create emotional discomfort and anxiety.  It was observed that when the writer gently probed [X’s] feelings and this thoughts and gently challenged his opinions about this he became very uncomfortable (bowing his head and placing his hands over his face).

   92. It is concerning that if [X] continues along this pathway it may set him up for future mental health problems.  He may lose touch with reality completely or he may turn to drugs seeking to relieve the stress and tension (of trying to accommodate inconsistencies and competing realities).  It is also possible he may resolve the tension by making a choice to reject one of the competing explanations he has been given about [Y’s] abuse.  It is possible he will adopt a work view consistent with his father’s.

9. Based upon that reporting, I am satisfied that X has a present relationship with his father, which he wishes to continue, and from which he derives feelings which he identifies as important to him.  However as Ms B opines, I am satisfied that the means by which he copes with the conflicting stories as to the father’s offending creates risk to X of the kind identified by her.  Nonetheless there is an intact relationship which, although it inevitably will have diminished in the nearly two years since the father spent time or communicated with X, still remains.

ISSUE 2 – RISK POSED BY FATHER’S HOUSEHOLD AND MEANS TO MITIGATE

1. The father has been convicted of sexually abusing Y in the former matrimonial home, during times when the relationship between the father and mother was intact.  It appears as though he was likely under the influence of at least alcohol, and perhaps drugs also, at the time.  A psychiatrist who provided a report in relation to the father for his criminal proceedings identified that “this [ie the sexual assault] can be understood as an occurrence of dissociative phenomena, during which he has no conscious awareness, due to the high level of alcohol ingested before committing the offences.  Alcohol and other drugs have provided him with avoidant and suppressing strategies, as a means of coping with his sexual abuse.  In effect he is acting out his own abuse, but in a dissociative state of conscious non-attendance.”

2. Significantly, the report continued:

   The offences have only occurred consequent to using high levels of alcohol and [the father] needs to undertake psychotherapy, cease alcohol use and engage with the [a] therapy course.

3. Worryingly, there is no evidence that the father has undertaken any psychotherapy, has plainly not ceased to use alcohol, and although he did engage with a therapy course, has subsequently disengaged.

4. I say that it seems plain that the father has not ceased, or likely even reduced, his alcohol intake, because in the subpoenaed material tendered into evidence, there is record of a contact between a correctional officer and the father on 29 May 2018, when slurred speech was reported.  Then, on 30 May 2018, there are further notes that the father appeared “to be under the influence, given his usual jovial and open manner, and slightly slurred speech.”  That note would also appear to record that the father had by then recommenced engaging with illicit drugs, in that it reports that he has “dabbled” in substances, which had led to him being placed on a sub-oxone therapy, which I assume to be an opioid based substitution program.

5. However on 31 May 2018 it appears as though the father told a Departmental Officer that he intended to disengage from the relevant opioid program, although I cannot be totally confident of that from the acronyms used in the note.

6. A further entry for 4 June 2018 notes that “[the father] states he was “dabbling” in illicit substances which were fast becoming weekly occurrences.”

7. Ms B undertook a home visit with the father on 13 August 2018.  His behaviour then gives little room for confidence, in that initially he did not respond to her calls or text messages to allow her access to his unit, but conveyed a message to her via his girlfriend to “fuck off.”  Ultimately he relented, and did permit himself to be interviewed by Ms B.  Although she did not observe any adverse effect on the father from liquor or drugs, that would not allow me to be confident that the father has disengaged from the abuse of either of those substances.

8. Further, the father now appears to be in active denial of any misconduct towards Y, and seems to be supported in this by his present partner.  Ms B was of the view that “the father does not assume responsibility for [his past behaviours], instead using his rehabilitation to make parole and his guilty plea to avoid a longer sentence.  This denial, minimisation and manipulation poses significant risks for possible future harm to the children.”  I accept that evidence.

9. I am therefore satisfied that the father presents a current risk of sexual harm to both children.  I cannot be confident that the assessment of Mr C remains current, particularly given the father’s apparent continued abuse of alcohol and other drugs.  That said, I cannot make a definitive determination as to the present level of risk, save to say that it is real and of substance.

10. However that is not the only risk which the father poses to X.  I have already observed Ms B’s assessment that X is coping with the fact of his father’s assault of Y in a dysfunctional way.  At [92] she said this:

    It is concerning that if [X] continues along this pathway it may set him up for future mental health problems.  He may lose touch with reality completely or he may turn to drugs seeking to relieve the stress and tension (of trying to accommodate inconsistencies and competing realities).  It is also possible he may resolve the tension by making a choice to reject one of the competing explanations he has been given about [Y’s] abuse.  It is possible he will adopt a world view consistent with his father’s.

11. In the successive paragraphs, she identified five specific risks which X’s reaction created, being:

    ·Learning to avoid responsibility and minimising the consequences of his actions;

    ·Accommodating a parent’s views at cost to himself, which interferes with healthy development of identity;

    ·Repressing his emotions, including his ability to empathise with Y, which could expand to others;

    ·The prospect (“high risk”) of developing future mental health problems as a result of his confusion, lack of clarity and denial about the issues surrounding Y;

    ·Accepting the view in the father’s household that the father was coerced into admitting guilt, which was untrue.  

12. At [98] she continued:

    98. Overall, in my opinion, [X] presents as emotionally conflicted and coping by fragmenting reality to deal with a situation in which he finds himself.  If left unaddressed, this will impact negatively on him in the long term.  He needs professional help and firm direction to resolve these complex problems. 

13. It was these concerns which informed her recommendations in relation to X spending no time with the father.  I infer that the magnitude of those risks of harm are proportional to the amount of exposure to the father.

ISSUE 3 – BENEFIT OF MEANINGFUL RELATIONSHIP WITH EACH PARENT

1. I have already recited the evidence from Ms B which supports the conclusion that the children would benefit from having a meaningful relationship with the mother, from which I am satisfied that they find comfort, nurture and support.  Further, the mother appears to be clearly attuned to the children’s needs, in that she has taken the children to the counselling which Ms B recommended.

2. As to the father, the evidence well satisfies me that there is no benefit to Y in having a relationship with him.  She is indifferent to him, claims that her sexual assault is now a matter of history which she has coped with and put behind her, and discerns no benefit from reacquainting herself with the father.  Worse, the father is apparently in some species of denial of the offence, which on the evidence, is plainly some risk to Y, whether by recurrence, disrupting her coping, or otherwise.

3. There is no benefit to Y in having a relationship with the father.

4. As to X, he believes that there is benefit in him having a relationship with the father, whom he plainly loves and misses.  That love is reciprocated; there is no reason to doubt that.  However I have extensively traversed the evidence of Ms B in this respect, which leads only to the conclusion that ultimately, to have a relationship with the father, would put X at risk on a variety of levels, both immediate, medium term and long term.

5. It was that which informed Ms B’s recommendation not to give X’s wishes any weight, and to impose a framework upon him where his choices about having a relationship with his father are removed.

ISSUE 5 – PARTIES’ CAPACITY TO PARENT CHILDREN AND MEET THEIR NEEDS

1. The father has a long history of alcohol and other substance abuse.  It appears to be protracted and ongoing, and he has now disengaged from any likely supports to help him wean himself off either.  In the past, under the influence of at least alcohol, he has sexually assaulted Y.  He appears to have had limited involvement with the children as a parent because of his regular recourse to alcohol, and what may be a result of his Post Traumatic Stress Disorder, arising from his own sexual assault.  Whilst one inevitably empathises with the father for being a victim of sexual assault, and for suffering the consequences of that, the reality is that one cannot ignore those consequences in this case.  They diminish his capacity to adequately provide for the children, and pose a direct risk of harm to them.  I am not satisfied that the father has the ability to meet the needs of either of his children.

2. On the other hand the mother presents as exemplary, and Ms B was glowing in her praise of her.

ISSUE 6 – IMPACT ON CHILDREN OF PARTIES’ PROPOSAL

1. In his Response, the father does not propose any relationship with Y, other than an indirect one of sending her cards and the like.  The evidence does not enable me to conclude the likely impact of such a regime on Y, but I am not persuaded it is likely to be of any assistance to her whatsoever to have any ongoing relationship with her abuser.

2. I have already dealt with Ms B’s extensive evidence as to the likely impact on X of maintaining a relationship with his father.  I am satisfied that it places him at a risk of harm on several levels, over various timeframes.

3. The mother’s proposal is to cease all contact and communication between the children and the father.  In fact that has been the position since 2016 for Y, and 2017 for X.  Both are reported to be doing well at school, and in evidence before me were X’s mid-semester school reports from first semester 2018, which would suggest that he is indeed coping well, as the mother suggests.  Therefore, given that in reality the mother’s proposal has been the status quo since May 2017, I can confidently predict that at least in the short to medium term, the impact on the children of her proposal will be minimal.

1. I accept that X is likely to experience a sense of grief and loss at the lack of a relationship with his father, but I am confident that the risks associated with acceding to his wishes far outweigh the impact of that grief and loss upon him.

ISSUE 7 – PARTIES’ COMMUNICATION AND EQUAL SHARED PARENTAL RESPONSIBILITY

1. The parties do not communicate and have not done so, with the exception that the mother has sought the father’s contribution to the costs of a school trip for X.  I am not persuaded that the parties have the necessary substratum of respect which would enable them to communicate effectively about any aspect of the children’s parenting.

SECTION 60CC CONSIDERATIONS

1. It will be appreciated that I have already addressed both primary considerations, and a number of the additional considerations, when traversing the issues.  However I make the following further observations.

2. Y is ambivalent about ever having any form of further contact with the father, whereas X wishes to maintain contact with him.  X is 14 years of age, and normally the wishes of a child of that age would be given real weight.  However in the unique circumstances of this case, I am not satisfied that X appreciates the risks to him identified by Ms B that would arise from a continued relationship with his father.  I therefore give his wishes little weight.

3. It appears as though, in the past, the father has had limited engagement in the children’s lives, however in this case, that is not a matter to which I give great weight.

4. It appears as though the father maintains his obligations in relation to child support.

5. There is the risk that a disparate regime between the siblings in terms of contact with the father could adversely affect them.  That is not a matter upon which I can make any confident prediction, or place great weight.

6. The children are not Aboriginal or Torres Strait Islander by descent.

7. There has been historical family violence between the parents, and plainly the sexual assault on Y is family violence.  Family violence orders have applied in 2010.  The inference which I draw from all of this is that the father is, on occasion, strongly affected by alcohol and other drugs, and it causes his behaviour to become unacceptable or violent.

8. The father has not engaged in the trial of these proceedings.  That is important, in that it demonstrates the level of commitment which he has to the claims which he advances.

PARENTAL RESPONSIBILITY

1. Plainly the presumption does not apply, as there is reason to believe there has been family violence.  In any event, I am not persuaded that the parties’ communication would support the discharge of any species of equal shared parental responsibility, noting that the father only seeks that in relation to X in any event.  I cannot identify any benefit which the father could bring to decision making in relation to X, which the mother does not have in ample quantities.

2. I am well satisfied that there should be an order for sole parental responsibility to the mother in relation to both children.

CHILDREN’S TIME AND COMMUNICATION WITH THE FATHER

1. The father in his Response proposed only indirect contact with Y.  I am not satisfied that there is any benefit whatsoever to her in maintaining even indirect contact with her former abuser.  It is in her best interests to neither spend time nor communicate with the father.

2. X on the other hand is a more difficult issue.  He plainly loves his father and wishes to maintain a relationship with him.  However I have extensively traversed both the risk of sexual harm to X in the father’s care, and the more subversive risks identified by Ms B as discussed above.  Whilst I cannot conclude with any confidence that the father does indeed pose an unacceptable risk of sexual harm to X, save to say that there is a real issue of substance in that respect, taken with the additional risks identified by Ms B, I am satisfied that it is in X’s interests to permanently sever the relationship with his father.  As I have noted when discussing the authorities, inevitably such an order is a matter of last resort for the Court.  However I am not satisfied that the risks which Ms B particularly identifies can be ameliorated to an acceptable level by supervision, which is probably unpractical in any event.

3. There will therefore be orders that neither child spend time or communicate with the father.

OTHER ORDERS

1. Otherwise there will be orders as contended for by the Independent Children's Lawyer and mother, including restraints on the father seeking to contact the children, or removing them from any place they may be.  Such orders are necessary to secure the children’s safety, and I will make them.

CONCLUSION

1. For these reasons I made the orders which I did on 4 March 2019.   

I certify that the preceding ninety (90) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 18 April 2019.

Associate:

Date: 18 April 2019