Croggard and Howe

[2013] FamCA 723

FAMILY COURT OF AUSTRALIA

CROGGARD & HOWE [2013] FamCA 723

FAMILY LAW – CHILDREN – With whom a child lives – Where the child has made disclosures of sexual abuse perpetrated by the Father – Where the Father did not participate in the final hearing – Where the Mother seeks orders that the Father be restrained from contacting the child – Whether the child’s disclosures are the product of the child’s strong alignment with the Mother – Whether the child’s disclosures are reliable given the circumstances – Whether the child is at an unacceptable risk of harm – Where the Mother has a resolute belief that the child has been sexually abused by the Father – Balance between meaningful relationship with the Father and protecting the child from sexual abuse

Evidence Act 1977 (Qld)

Family Law Act 1975 (Cth)

Allesch v Maunz (2000) 26 Fam LR 237
M v M (1988) FLC 91-979

APPLICANT: Mr Croggard

RESPONDENT: Ms Howe

INDEPENDENT CHILDREN’S LAWYER: Mr Bruce Scott

FILE NUMBER: BRC 7816 of 2009

DATE DELIVERED: 5 September 2013

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Kent J

HEARING DATE: 22 May 2013

REPRESENTATION

SOLICITOR FOR THE APPLICANT: John McDonald Lawyers

FOR THE RESPONDENT: In person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Green

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Parker Family Law

Orders

It is ordered that

1. All previous parenting Orders be discharged.

Parental Responsibility

1. It is declared that the presumption of equal shared parental responsibility is rebutted in the best interests of B born … 1999 (“the child”).

2. The Mother shall have sole parental responsibility in respect of all major long-term issues (as that expression is defined in the Family Law Act 1975 (Cth) (“the Act”)) in respect of the child.

Live With, Time and Communication

1. The child live with the Mother.

2. The child not spend time with the Father unless the child requests to do so.

3. The Mother do all things to cause the child to continue undertaking therapeutic counselling as recommended in paragraph 70 of the Family Report dated 18 December 2012.

4. The Mother shall ensure that the child attend at Child Dispute Services, of the Brisbane Registry of the Family Court of Australia on a date to be advised so that a Family Consultant can explain these Orders and reasons for judgment to the child.

Miscellaneous

1. Pursuant to s 65DA(2) and s 62B of the Act, the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties adjust to and comply with an Order are set out in the Fact Sheet attached hereto and these particulars are included in these Orders.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 7816 of 2009

Mr Croggard

Applicant

And

Ms Howe

Respondent

REASONS FOR JUDGMENT

Introduction

1. Ms Howe (“the Mother”), Mr Croggard (“the Father”) and Mr Bruce Scott, the Independent Children’s Lawyer (“the ICL”) appointed to independently represent the interests of the child B born in 1999 now aged 14 years (“the child”) have competing proposals for parenting orders pursuant to Part VII of the Family Law Act 1975 (Cth) (“the Act”).

2. The Father filed an Initiating Application in the Federal Magistrates Court (as the Federal Circuit Court then was) on 3 September 2009. In March 2012 the proceedings were transferred from the Federal Magistrates Court to this Court. The Mother filed an Amended Response on 10 October 2012.

3. The Father initially sought orders that he have sole parental responsibility and that the child live with him and spend time with the Mother as agreed between the parties. However, the Father chose not to participate in the final hearing on 22 May 2013. The Mother seeks orders that she have sole parental responsibility; that the child live with her and that provision be made to restrict the Father from contacting the child.

Factual and Procedural History

1. The Father is 56 years old, having been born in 1957. The Mother is 46 years old, having been born in 1966. The parties met in C Town in 1997 and commenced their relationship shortly thereafter. The parties never resided together or married. The parties’ relationship ended in early 2003.

2. The Mother has two adult children from a previous relationship, Mr D Howe, born in 1991 who is now 22 years of age and Mr E Howe, born in 1992 who is now 21 years of age.

3. As noted, the child was born in 1999 and she is the only child of the relationship and is now 14 years of age.

4. The child resided with the Mother and her half-siblings from birth. Shortly after the termination of the parties’ relationship in 2003, the parties participated in mediation where they made informal arrangements that the child live with the Mother and spend time with the Father each alternate weekend and on one occasion during the week. Subsequently the child developed behavioural problems and each party attributes blame to the other for this.

5. The Mother placed the child in the Father’s care from May 2007 until January 2009 and again in January 2009 to April 2009. Both parties provide conflicting reasons as to why the child resided with the Father during these periods. The Father contends that the Mother was too preoccupied with her new relationship and writing her book to care for the child which caused the child to develop behavioural problems. In contrast, the Mother contends that her decision to allow the child to live with the Father was based on the hope that he would stop stalking her family and causing them undue stress.

6. The Mother contends that during the periods that the child resided with the Father he alienated the child from the Mother, exposed the child to family violence and abused her (both physically and sexually).

7. Proceedings between the Mother and Father have been before this Court and the Federal Magistrates Court since mid 2009. The Father commenced the proceedings by way of his Initiating Application filed in the Federal Magistrates Court on 3 September 2009.

8. The matter was set down for final hearing in the Federal Magistrates Court for two days commencing on 3 February 2011.

9. On 3 February 2011 interim consent Orders were made that the Mother have sole parental responsibility, that the Father spend supervised time with the child on a weekly basis at a contact centre and, that the parties attend upon a family consultant on 9 May 2011.

10. In March 2011 the child ceased attending the supervised contact sessions after refusing to see the Father. Consequently, on 6 June 2011 Federal Magistrate Spelleken (as her Honour then was) suspended the interim consent Orders relating to the Father spending supervised time with the child.

11. In mid 2011, unbeknownst to the Father, the Mother and the child relocated to the C Town area. Shortly thereafter both the Mother and the child failed to attend two child inclusive conferences. On 2 December 2011 a warrant was issued for the Mother’s arrest when she failed to attend a subsequent court event.

12. During a child inclusive conference on 7 February 2012 the child made allegations that she had been sexually abused by the Father. Shortly thereafter the proceedings were transferred from the then Federal Magistrates Court to this Court.

Proceedings and Proposals

1. The Mother filed her Amended Response to Initiating Application on 10 October 2012 seeking orders that the Mother have sole parental responsibility; that the child live with the Mother; and that the Father be restricted from contacting the child.

2. The matter was set down for a one day trial on 22 May 2013.

3. The Father was aware of, and was served with, the Mother’s Amended Response to Initiating Application filed 10 October 2012. The Father was represented in the proceedings at all Court events until a letter outlining his intention to withdraw his application was tendered in Court by his legal representative on 22 May 2013 (exhibit 1). On this day the Father did not attend and had given a written instruction to his solicitor on the evening prior to trial indicating his intention to withdraw from the proceedings.

4. In the letter the Father stated as follows:

   I wish to advise the court that I intend to withdraw my application. Following my reading of the recent Family Report I believe it will be in the best interest of my daughter that these proceedings are terminated… It saddens me… that I am missing out on her growing years… However her wellbeing must, and always has been, my paramount concern.

5. The Father’s legal representative informed the Court that he did not have instructions to make submissions on behalf of the Father as his position was set out in the letter. Whilst no submissions were made by the Father at trial, it is noted that he is in agreeance with the orders proposed by the ICL as the Father’s legal representative was able to contact the Father by telephone and obtain instructions to consent.

6. The rules of procedural fairness and natural justice need to be considered before determining the matter on an undefended basis. Within the rule of procedural fairness lies the indispensable requirement of the Court’s system of justice that a party being affected by a decision have the opportunity to be heard. As highlighted by Kirby J in Allesch v Maunz (2000) 26 Fam LR 237, where a person’s interests may be adversely affected by a Court’s decision, that person must be afforded an opportunity to place before the Court material information and submissions before the decision is made.

7. As was emphasised by Kirby J it is the opportunity to be heard which is essential to procedural fairness, not that the Court must receive evidence or submissions on behalf of that party before making orders. The principle does not require the decision maker to actually hear the party. As Kirby J stated in Allesch v Maunz (supra) (at [38]):

   …Sometimes, through stubbornness, confusion, misunderstanding, fear or other emotions, a party may not take advantage of the opportunity to be heard, although such opportunity is all that is provided. Affording the opportunity is all that the law and principle require.

   (emphasis added)

8. I am satisfied that the Father has been afforded the opportunity to be heard. I am satisfied that the Father was aware of the trial date as evidenced from the presence of his legal representative at trial. Despite being given further opportunity pursuant to the Orders of Registrar Brooks made on 20 June 2012 to file updated material including applications, responses and trial affidavits, the Father has chosen not to do so.

9. I am satisfied on the evidence before me that the Father has shown an intention not to participate in the proceedings. On that basis I am satisfied that the matter ought be heard and proceed on an undefended basis.

10. No oral evidence was given at trial. The ICL relied on the family report of Ms F dated 18 December 2012, and handed up a bundle of subpoenaed documents which included a summary of child protection notifications, various police reports and temporary protection Orders (exhibits 2 and 3).

11. The final orders sought by the ICL are substantially the same as those proposed by the Mother. Both the Mother and the ICL seek orders that the Mother have sole parental responsibility and that the child live with the Mother. The only real point of difference lies in the orders sought regarding contact between the Father and the child. The Mother seeks an order that an injunction be placed upon the Father restraining him from having any contact with the child. In contrast, the ICL seeks an order that the child not spend time with the Father unless the child requests to do so. The Mother has also agitated orders in the Federal Circuit Court that would restrict the Father having any contact with the child as a named person.

12. Initially the Mother also sought an injunction under s 118 of the Act that the Father be prevented from bringing any further proceedings without first obtaining leave of the Court, however she did not pursue this order.

Statutory Framework

1. Part VII of the Act (ss 60A to 70Q) provides the statutory framework in which the Court exercises its power to make parenting orders.

2. Section 60B of the Act sets out that the objects of Part VII are to ensure that the best interests of children are met and details how those objectives are achieved (s 60B(1)); and the principles which underlie those objects (s 60B(2)). Section 60B(1) provides:

   (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.

3. Section 60CA of the Act requires that, in deciding whether to make a particular parenting order in relation to a child, the Court must regard the best interests of the child as the paramount consideration.

4. Section 60CC of the Act identifies the “primary considerations” (s 60CC(2)) and the “additional considerations” (s 60CC(3)) the Court must consider in determining what is in the child’s best interests. That requirement is supplemented by the further requirement for the Court to consider the extent to which each parent has fulfilled or failed to fulfil responsibilities as a parent in the particular respects identified in s 60CC(4).

5. Section 65D of the Act provides the source of the Court’s power to make a “parenting order”. This section expressly provides that this power is subject to, inter alia, s 61DA of the Act. Section 61DA(1) requires the Court to 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. The presumption does not apply in circumstances of abuse or family violence of the kind referred to in subsection (2) and further, the presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility (s 61DA(4)).

6. If the Court makes an order providing that a child’s parents are to have equal shared parental responsibility for the child then it must go on to consider whether it is in the best interests of the child and reasonably practicable for the child to spend equal time with each of the parents, and if it is, to consider that order and, if not, the Court must consider an order for substantial and significant time with each of the parents (s 65DAA).

s 60CC Considerations and Application

1. I have already referred to the proposal of the Mother, and in the context of an undefended hearing, there is essentially no competing proposal made by the Father. As previously stated, the Mother and the ICL are largely in agreeance on the proposed orders with the sole exception being the orders sought by the Mother and ICL in relation to contact between the Father and the child.

2. B has resided with the Mother since March 2010 and refused to have any contact with the Father since March 2011. Since this time the child has consistently stated the view that she does not want to have contact with the Father (s 60CC(3)(a)). In terms of the nature of the child’s relationship with each of the parties it is clear, based on the evaluations made by the family report writer, which I accept, that the child is strongly aligned with the Mother and will do “whatever it takes not to lose her mother’s love including accepting the Mother’s negative view of the Father”[1] (s 60CC(3)(g)).

   [1] Family Report of Ms F dated 18 December 2012, paragraph 63.

3. The child has exhibited behavioural difficulties since the parties separated in 2003. The child has suffered significant emotional harm by being subjected to the acrimony in the Father’s respective relationships with the Mother and his partner Ms G, and by being exposed to the Mother’s negative view of the Father. To that end, in terms of s 60CC(3)(c) of the Act it is likely that the Mother would be unable to facilitate a relationship between the child and the Father.

4. The ICL submitted that both parents have, at times, been wanting in their capacity to provide for the child’s intellectual and emotional needs (s 60CC(3)(f)). However, based on the parties respective histories in caring for the child the ICL submitted that on balance, the Mother would be the most able to provide for the needs of the child. The ICL based this submission on the Mother’s actions in 2011 when the child exhibited behavioural difficulties and the Mother responded by utilising support mechanisms, including youth services and the assistance of the maternal grandparents, to overcome these difficulties. In contrast, the ICL submitted that the Father’s capacity has not been tested since the child resided with the Father in early 2009 (s 60CC(3)(i)). Evidence contained in the family report and the subpoenaed documents indicates that during the periods when the child lived with the Father, the child was exposed to family violence between the Father and his partner, Ms G, and was allegedly abused by the Father.

No Contact Order

1. The key issue for determination is whether, pursuant to the orders proposed by the Mother, an order be made restraining the Father from contacting the child.

2. The Mother has made submissions that an order preventing the Father from contacting the child is necessary for her safety. The Mother seeks this Court make a finding that either the Father physically or sexually abused the child and/or that there is an unacceptable risk of the child being abused if she is in the unsupervised presence of the Father. The ICL submitted that in the absence of such findings it would not be in the child’s best interests for the Court to make the no contact order.

Allegations of abuse and unacceptable risk of harm

1. Several child protection notifications have been made to the Department of Child Safety and Disability Services (“the Department”) in connection with the child. The first notification was made on 23 April 2008 regarding the child’s behavioural issues. Since this time several other allegations have been made relating to physical and sexual abuse perpetrated by the Father.

2. Whilst living with the Mother the child has made several allegations of physical and sexual abuse against the Father. The Father has previously denied such allegations claiming they are the result of the Mother’s influence over the child. However, as the Father did not attend at trial, this evidence remains untested. The evaluations of the family report writer include that:

   [The child] desperately wants to cling on to her relationship with her mother but because of her deep seated fear that her mother will reject her again, she will do whatever it takes not to lose her mother’s love, including accepting her mother’s negative view of her father.[2]

   [2] Family Report of Ms F dated 18 December 2012, paragraph 63.

3. The main allegation made by the child relates to an incident where the Father reportedly sexually abused the child around the time of her birthday when she was residing with the Father. However, the child’s account of the event was vague at times and varied each time she reported it.

4. In essence, on either the child’s ninth, tenth or eleventh birthday the Father came into her bedroom and reportedly touched the child “in places that he is not suppose [sic] to”.[3] Based on subpoenaed documents, on 10 August 2012 the child a formal complaint to police during a s 93A[4] interview that the Father reached under her clothes and touched her breast. However, there is no formal record of this interview as the child declined to take action as she was receiving counselling. There is also a statement by the child to several people, including psychologist Mr H, that J, the child of Ms G, was in the room when the incident occurred and the Father paid her off as he believed J was aware of something occurring. No statement has been obtained from J to assist the Court. Further, there has been no formal record of interview of the Father.

   [3] Family Consultant Memorandum to Court by Ms K dated 7 February 2012 unmarked p. 4.

   [4] Evidence Act 1977 (Qld).

1. In relation to a finding of whether the Father sexually abused the child, the ICL submitted that the Court could not determine whether the event actually occurred as the child’s allegations, on balance, taking into account all the factors, were not an actual recount of her experiences. Rather, they were statements driven by her determination not to see the Father and secure her relationship with the Mother.

2. In making this submission the ICL emphasised the following factors, namely: that the child made the allegations long after the alleged event occurred; that the child’s accounts of the event were rather vague on the various occasions that she has provided them; and finally, that the information was disclosed in the context of the child showing her loyalty alignment with the Mother.

3. The first allegation made by the child was on 7 December 2011 at school during a sexual education class when the child was residing with the Mother. That the child would impart this information at first instance to a complete stranger, such as a visiting teacher who came to school to talk about sex education, rather than to the Mother or some other person well known to her is curious.

4. Further, as a result of referrals by both the Father and the school, the child was undertaking sessions with various professionals, including Child Mental Health, around the time the alleged incident occurred. During these sessions the child made statements adverse to the Father about various things, none of which related to the incident of sexual abuse – which allegedly occurred when she was 9 or 10 – until at least two years later.

5. I find it to be likely that the child’s allegations were not sourced in actual experiences but sourced in her need, at the time she perceived it, to make an adverse allegation about the Father to secure the position that she would not have to see him. Underlying that may also be other reasons why the child did not want to see the Father.

6. In M v M (1988) FLC 91-979, the High Court authoritatively determined the applicable principles for a primary judge to apply in determining parenting orders in a case involving allegations of sexual abuse. Of particular relevance to this case is the proposition that a primary court is not under a duty to definitively determine whether a parent has sexually abused a child. Therefore, it is not necessary that this Court make a positive finding that sexual abuse has or has not occurred. The ultimate and paramount issue for this Court is the making of orders in the best interests of the child.

7. In determining what parenting orders are in the best interests of the child it is fundamental that the Court take into account the existence and magnitude of the risk of sexual abuse. The Court will not make orders for time and communication, which would expose the child to an unacceptable risk of sexual abuse. Therefore, the Court must balance the risk of detriment to the child of sexual abuse with the possibility of benefit to the child of contact with the Father.

8. The ICL submits that the evidence does not support a finding that the child is at an unacceptable risk of harm if alone with the Father. The ICL further submitted that in the event that a finding is made by this Court that the Father poses an unacceptable risk to the child, the orders proposed by the ICL meet the risk and would not allow for such opportunity. The ICL based this submission on the fact that the child is now 14 years old and resides full-time with the Mother. If an untoward move is made by the Father, the child will be in a position to repel it in the circumstances. Should any incident arise the child would be able to report it to the Mother and articulate her views far better now than when she was nine or ten (when the alleged incident occurred).

9. The Mother opposed the ICL’s submissions and submitted that if the child is in the presence of the Father she would be at an unacceptable risk of harm as she has no doubt that the Father sexually abused the child.

10. In the circumstances I find that on balance unsupervised time or communication between the child and the Father in future would not expose the child to an unacceptable risk of sexual abuse.

11. The child has not had any face-to-face contact with the Father since May 2011. Since this time she has consistently maintained that she does not want to see the Father. The last time the Father attempted to contact the child was in September 2012. There is no evidence that the Father has persisted in attempts to contact the child in recent times. Based on this evidence and the letter tendered by the Father at trial it is clear that the Father recognises that any meaningful contact in the future must be instigated by the child, and not by him.

12. In making orders in the best interests of the child, the balance is between the child having the capacity in the future, if she chooses, to contact the Father and the Father being able to follow up on such contact, without breaching the orders.

13. As already noted, the child currently maintains the position that she does not want to see the Father and has done so since March 2011. It is likely, based on the evaluations made by the family report writer that the child’s opinion of the Father is clouded by her strong attachment and alignment with the Mother.[5] The child is currently 14 years of age; in the future she may wish to communicate with the Father. If the Court makes an order, as proposed by the Mother, that prevents the Father from ever contacting the child, the Father would not be able to follow up on any contact instigated by the child.

    [5] Family Report of Ms F dated 18 December 2012, paragraph 63.

14. The ICL made submissions that the ICL’s proposed orders are in the child’s best interests as they provide the protection needed, but allow for the possibility, albeit very remote, that the Father may come back into the child’s life.

15. History indicates that the Father is not going to contact the child. By withdrawing his application on the day of trial the Father has stepped away from these proceedings where he had the capacity to seek orders to have contact with the child, such as writing her letters.

16. On balance, the best interests of the child would be best served if the order sought by the Mother preventing the Father from contacting the child is not made. This allows the child the opportunity to instigate contact with the Father if she chooses to do so and would not prevent the Father from responding to the child if she instigates such communication.

17. The other orders proposed by the ICL, whilst not strictly consented to by the Mother, were not opposed by her and I am satisfied, having regard to the contents of the family report, that orders for therapeutic counselling and for the orders to be explained to the child by a family consultant meet the child’s best interests and will therefore be made.

Parental Responsibility

1. The ICL made submissions that based on the history of interaction between the parties it would not be in the child’s best interests for the parties to have equal shared parental responsibility. Further, equal shared parental responsibility would lead to increased conflict between the parties which could not be said to be in the best interests of the child. I accept these submissions.

2. Therefore, for the reasons outlined above, I make the finding that the presumption of equal shared parental responsibility is rebutted in the best interests of the child or, alternatively in any event, does not apply because of abuse and family violence, within the meaning of the Act, which has occurred (s 61DA).

3. Under the terms of the orders proposed by the ICL there are no obligations imposed upon the Mother to update the Father of the child’s activities from time-to-time, such as her performance in school or extra-curricular involvement. It is noted that the ICL did not oppose the making of such orders at trial, however, expressed concern that given the level of animosity between the parties the Mother may not be able to carry out such an order.

4. In the circumstances of this unfortunate case I am not of the view that the child’s best interests would be served by imposing a positive obligation on the Mother to communicate with the Father, even for the purpose of providing such information.

5. Therefore, I propose the making of Orders in the terms set out by the ICL, that the child reside with the Mother and that the Mother have sole parental responsibility as being in the child’s best interests.

I certify that the preceding sixty-five (65) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 5 September 2013.

Associate:

Date:  5 September 2013