Cummings & Cummings
[2022] FedCFamC2F 40
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Cummings & Cummings [2022] FedCFamC2F 40
File number(s): DGC 2944 of 2019 Judgment of: JUDGE BURCHARDT Date of judgment: 27 January 2022 Catchwords: FAMILY LAW – Parenting dispute about best interests of five year old boy – father convicted of sexual assault on 12 year old half-sibling – father pleading guilty and receiving community corrections order – whether father truly admitting the offence – whether father constitutes ongoing risk to the son – offending by the father having very serious effects on the mother and the 12 year old daughter – father’s simplistic assertions that offence irrelevant – mother seeking total excision of the father – Independent Children’s Lawyer supporting time with the father – Independent assessment concluding father a low risk of re-offending – interim orders for supervised time made. Legislation: Family Law Act 1975 (Cth) Cases cited: Goode v Goode [2006] FamCA 1346
Oberlin & Infeld [2021] FamCAFC 66
Re Andrew [1996] FamCA 43Division: Division 2 Family Law Number of paragraphs: 106 Date of last submission/s: 14 January 2022 Date of hearing: 13-14 January 2022 Place: Dandenong The Applicant: The Applicant is self-represented Counsel for the Respondent: Mr Moore Solicitor for the Respondent: Duffy And Simon Counsel for the Independent Children's Lawyer: Mr Lethlean Solicitor for the Independent Children's Lawyer: McCormack And Co ORDERS
DGC 2944 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR CUMMINGS
Applicant
AND: MS CUMMINGS
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE BURCHARDT
DATE OF ORDER:
27 JANUARY 2022
THE COURT ORDERS THAT:
1.The matter be adjourned to this Court for further hearing before Judge Burchardt on 29 April 2022 at 10.00 am.
2.The party responsible for the payment of any fee including a setting down or hearing fee pay or cause to be paid such of the fees as shall be payable by that party in accordance with, and within the time specified in, the Family Law (Fees) Regulation 2012.
3.The mother have sole parental responsibility for the child X born in 2016 (“the child”).
4.The mother notify the father of any decision on major long-term matters of the child’s care, welfare and development in writing within seven days after making the decision.
5.The child live with the mother.
6.The child spend time with the father:
(a)For four hours each alternative Saturday, and on the child’s birthday, at times to be agreed and failing agreement, commencing at 11.00 am;
(b)Each alternate Thursday from the conclusion of school or 3.30 pm until 7.30 pm;
(c)With change-over when not at school facilitated by, and all time supervised by Ms B, Mr D or a person agreed in writing, without bringing the father and mother into proximity.
7.Neither parent denigrate the other or discuss these proceedings in the presence of the child.
8.All communication between the parents is to be conducted via the AppClose app.
9.Pursuant to section 62G of the Family Law Act 1975 (Cth), the parties and X born in 2016 (the child), are directed to attend with a Court Child Expert (practicing under their appointment as a family consultant) nominated by the Court Children's Service (the Court Child Expert) for the purposes of the preparation of a Child Impact Report at the dates and times below, or as otherwise directed by the Court Child Expert.
10.Part 1 of the event will occur by video, using Microsoft Teams, on a 7 April 2022, with.
(a)the applicant father to attend at 9.00 am; and
(b)the Respondent mother to attend at 10.30 am.
11.Part 2 of the event will occur in person at the Dandenong registry Federal Circuit and Family Court of Australia on the morning of 12 April 2022.
12.Each party will do all things necessary to ensure the child attend upon the Court Child Expert pursuant to Section 62G(3A), unless otherwise determined by the Court Child Expert that Section 62G(3B) applies.
13.The parties and the child shall continue to attend at such times, dates and places as the Court Child Expert may advise.
14.Not later than 4.00 pm on 3 February 2022 the parties must provide their contact telephone numbers and email addresses to [email protected].
15.Pursuant to order 10 herein, the Court Child Expert shall provide a written report to the Court and the report shall deal with the following matters:
(a)any agreement reached between the parties;
(b)identification of key issues requiring resolution;
(c)any views expressed by the child and any matters (such as the child's maturity or level of understanding) that would affect the weight that the court should place on those views;
(d)the impact of the issues/dispute before the Court on the child;
(e)any other matters that the Court Child Expert considers important to the welfare or best interests of the child.
16.Upon completion, the Child Impact Report shall be provided to the Court for release to the parties, including by way of order made in Chambers.
17.The Court Child Expert will be at liberty to inspect any material filed by the parties.
THE COURT NOTES THAT:
A.Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these Orders.
B.If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.
C.Affected unrepresented parties may apply to the Commonwealth Family Violence and Cross-Examination of Parties Scheme
D.(“the Scheme”) for representation but any such application must be made at least 12 weeks prior to the Final Hearing.
E.Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.
F.If section 102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Cummings & Cummings has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE BURCHARDT
INTMR HUCTORY
This is a parenting dispute about the best interests of a young boy, X, who was born in 2016. The applicant father, whose position is supported by the independent children's lawyer, seeks that the present regime of supervised time progress to unsupervised, and increase incrementally over time, to overnight time and, ultimately, half school holidays. The mother's position is that there should be no time spent with the father at all. In the alternative, and the mother clarified this in evidence, the ultimate she could conceivably tolerate would be supervised time for four hours per week, with the matter to return to court for review, and with no contact whatever between her and the father.
For the reasons that follow, and noting that this is as difficult a matter, from my perspective, as I have ever been asked to decide, I propose to order that the father's time be increased to four hours each week, in one week on a weekend on the Saturday and in the other after school on Thursdays, supervised by an adult. Changeover will be by independent third parties. And the matter will return for review in late April 2022.
AGREED ON CONTROVERSIAL MATTERS
The father was born in 1967. He was not born deaf, but has become so during the course of his life. He speaks Auslan, and also can, to an extent, lip read. He is capable of expressing himself, however, through speech. He has suffered very severe injuries in 2011 following a car crash from which it appears he has, essentially, recovered. His health is otherwise generally unremarkable.
The mother was born in 1981. She is able to converse in Auslan, something, obviously, that enabled the relationship between the parents to take place. They met in 2009, and commenced cohabitation in 2011, before marrying in 2013. They separated in the most traumatic circumstances on 4 May 2019 and were divorced on 30 August 2020.
The father has two other children, Ms B, born in 1997, and Mr D, born in 2001. The mother, likewise, has two other children, E, born in 2007, and F, born in 2008.
In their affidavit material, both parties have essentially asserted that the relationship went well until the events of 4 May 2019. On that day, the wife left home to attend a fundraising event, and left the children with the father. When she returned, E made revelations of a sexual assault upon her by the father. She asserted that he had touched her breasts when he had been massaging her neck, in placing his hands under her top and inside her bra. She then also asserted that the father had subsequently - the same day, obviously - again, touched her breasts while they were in X's room, while F was reading X a bed time story. The father was arrested and subsequently charged with one count of sexual assault of a child under 16 years, to which he ultimately pleaded guilty in October 2021. He was placed on a community corrections order for two years with a number of conditions. The father has, from time to time, denied that the offense occurred (something to which it will be necessary to return) and, indeed, even now, maintains that he is in denial.
The sexual assault has undoubtedly had a very damaging effect upon both E and on the mother. Once again, it will be necessary to return to this aspect of the matter.
Following involvement by the then DHHS, a case plan was put in place for X to spend supervised time with his father, and orders were made by the court on 30 October 2019 for the father to spend two hours of supervised time a week with the father. Time actually commenced in about April 2020. Voluminous reports from the professional supervision services that have supervised the father's time show a warm and affectionate relationship between X and his father.
THE PARTIES' AFFIDAVITS
Detailed recitations of the parties' affidavits are likely to be as relatively sterile reading as detailed notes of the oral evidence, but in this case, in my view, some traversal of some of the aspects of the affidavit material is important.
The father's first affidavit set out details of the family as they have been described in the agreed section above. Understandably, perhaps, given that he was then under investigation for a possible laying of criminal charge, he said but little about the incident on 4 May 2019. At paragraph 4, he said that he had become intoxicated that afternoon, and then comments:
I was looking after the children in the living room that evening while we watched TV. Nothing of note occurred that I can remember.
Much of the affidavit was concerned with property issues that have since been resolved by consent.
The mother's first affidavit, filed 22 October 2019, sets out details of the disclosures made by E very much in the terms that are set out in the agreed passage above. On her version of the events, she had taxed the father with the alleged disclosures, and he, at no stage, denied the abuse had occurred, but he did not respond directly to the questions put to him. I note, at paragraph 38, the mother deposed:
After the incident myself, E and F have all been in contact with SECASA and have all received counselling. E and I continue see a counsellor on a regular basis.
The affidavit noted that E and F had both given statements to SOCIT and complained of the father's complete lack of remorse, concern, responsibility, or understanding of the serious trauma and harm his actions had caused and continue to cause (paragraph 58).
The mother's next affidavit, filed 12 February 2020, traversed the continuation of the police investigations. The affidavit noted the continuing of weekly Skype contact between X and his father, which was the only time that X was spending with his father at that time. The affidavit asserted that X was developing well, but in relation to E, it was asserted at paragraphs 30-31:
E commences year 8 at G School and is progressing well at school. E was attending upon a counsellor through SECASA until around late 2019. E continues to obtain support from the welfare team at her school. I remain concerned about the level of anxiety E displays at times, especially on days when Mr Cummings is to communicate with X. The thought of that contact appears to weigh heavily on her. E's sleep patterns are occasionally disturbed, waking at night and coming in to see me and very tired in the mornings.
E experiences anxiety when we attend the local shops for fear of seeing Mr Cummings.
The father's next affidavit, filed 3 December 2020, asserts at paragraph 1D:
I should not be denied the opportunity to bring up X and have family time with him that is just and fair for X and for myself.
The affidavit went on to note that X has not seen his paternal grandparents since May 2019, and is having difficulty recognising them. The affidavit noted that supervised time had started on 13 April 2020, and that the father had been charged, but had pleaded not guilty to the offence with which he had been charged. The affidavit noted that there might be delay in the Magistrates Court as a result of COVID. The tenor of the affidavit is generally accusatory of the mother, including an assertion that the mother had deliberately denied X access to Auslan to frustrate their time together. At paragraph 8E, the father asserted:
This is why we are in the Federal Circuit Court. For the one reason only - Ms Cummings's initial refusal to do what is best for X and organise supervised visit following the DHHS report in June 2019.
There are a number of annexures which include messages from the father to the contact centre, the mother's lawyers, and the independent children's lawyer. At page 28 of 83, in a letter to the solicitor for the mother, dated 2 June 2020, amongst a number of complaints, the father relevantly said:
Your client knows how to play the court system having done the same thing with her ex husband Mr H in order to gain access to E and F when she planned for months to walk out on him without saying anything, without trying to resolve issues. She ran away to her parents with a 3 month old and a 13 month old and refused to allow him to see the girls for months and only then with her parents supervising him at their home where she moved to.
I also know for a fact that Ms Cummings was planning to leave me. So E's allegations came at the perfect time for her to walk away with the children and seek full access of X, rather than after Mother's Day as planned.
Your client does not really have genuine protective concerns in relation to X spending time with me, because the time he has with me is supervised.
At page 30 of 83, the father continues, relevantly:
There is only one person your client is thinking of in this whole saga around X.
Herself.
Your client really needs to stop victimising X.
Your client has already destroyed E's relationship with her dad Mr H by continuously, over the years, telling E that her dad was emotionally abusing her which turned E against him resulting in her coming to live with us full time in March 2019.
I have no confidence whatsoever in your client being impartial to X about me in order to do everything she can to ruin our relationship as she did between E and her dad.
In a further letter to the wife's solicitors, dated 28 October 2020, at page 50 of 83 of the affidavit, the father relevantly said:
Remember, your client has pulled strings in all directions to manipulate people like muppets. Your client has been through the system before and knows how to play the game.
The mother's trial affidavit in part repeats matters already asserted in earlier affidavits. This includes the incident on 4 May 2019. In my opinion, in the face of the disclosures made by E and F (exhibits 1 and 2), any notion that the offence did not occur as described would be untenable.
The father's affidavit, filed 11 September 2019, had said, relevantly, at paragraph 16:
I deny this allegation and say that it is manifestly untrue. I further say that I have never been abusive towards E, F or X at any point. I was shocked to learn of the allegations
Notwithstanding this, I note that in 6 to the wife’s trial affidavit, the community correction order assessment outcome report, dated 23 September 2021, the father had relevantly said:
I am apologetic to my step-daughter, I wish it never happened.
The affidavit deposed that the father had changed his plea from time to time, but ultimately entered a plea of guilty on 1 October 2021, and as earlier indicated, was placed on a CCO.
The affidavit noted the father had been placed on the sex offenders register for eight years, and noted further that, following the expiry of a two year intervention order first granted on 21 August 2019, the police had taken out a further intervention order against the father on 8 December 2021, which has an expiry date of 7 December 2025.
At paragraph 63 and following, the mother deposed to the impacts and consequences upon her of the sexual abuse. I note that the mother engaged with SECASA between 18 June 2019 until 28 October 2021 for counselling on 25 occasions. She also attended upon psychologist Mr J for an additional four sessions during 2020. She went on to say:
Notwithstanding the significant counselling I have engaged in, I continue to feel disgusted and angry at Mr Cummings for what he did to E and the impact that it has had upon her. I have attempted to develop skills to not allow the feelings that I have overwhelm me however I find that I still struggle daily with what happened to E. I cry a lot and some days I have difficulty getting through basic day to day activities for me and the children.
I try every day to remain strong and to provide emotionally and physically for the children. Some days, that is still extremely difficult for me.
I continue to feel an overwhelming sense of betrayal for what Mr Cummings did to E. The thought of seeing Mr Cummings in the local community causes me significant anxiety. I am extremely fearful of bumping into him whenever I leave the home to go shopping or into the community for any reason. I do not ever want to see Mr Cummings again. I am unable to imagine being capable of effecting changeover for Mr Cummings to spend time with X without the involvement of an independent third party / supervisor. I also continually worry about the impact upon E and F if they bump into Mr Cummings in the community unexpectedly. I know that both E and F are extremely worried about seeing Mr Cummings unexpectedly in the community. .
At paragraphs 68-69, the affidavit continued:
I have difficulty trusting other people. I always think there is a hidden agenda and things aren't how they seem on the surface. I am always fearful something bad will happen when the children are away from me for any reason. I am unable to relax unless they are in my care.
I am unable to contemplate X spending time with Mr Cummings without experiencing anxiety and fear. I am fearful that Mr Cummings will abuse X or place X at risk. The thought of X having to spend time with Mr Cummings affects me significantly and causes me ongoing tension, panic and fear.
The affidavit went on to traverse the effect of the offending on E. The paragraphs 85-90 do not need to be repeated in full. It is sufficient to say that the counselling did not go well and that E has been very significantly and detrimentally affected, as is unsurprising, by the offence.
Once again there are a number of annexures, including further correspondence from the father. His tone is always accusatory and at times somewhat bumptious and/or offensive. Essentially, he accuses the mother of deliberately failing to promote X's best interests by obstructing his time with him.
I note that in an email to the mother's solicitors dated 28 October 2021 at page 137 of the affidavit the father asserts that X responded badly to a simple fall and cut, asserting:
it was almost autistic like in its drama
He went on to say that:
That is not the X I know. What has happened to him? What have you done? What has he become?
He says he is afraid of everything. He won't even go outside into the backyard. Doesn't want to be outside. He says he doesn't go for walks and can't ride a bike without training wheels. Doesn't go to the oval and kick a footy or soccer ball.
Just plays on his phone or watches tv around school. It's all on the supervisors report. It's what he tells us. It is really sad. It is not the X that he could have been if I had more time with him.
Annexure 19 is the mother's victim impact statement form, and annexure 20 is that of E. They make unsurprisingly distressing reading.
On 7 January 2022 the father filed a further affidavit. Relevantly at paragraphs 14-16 he deposed to have concern developing on his part in the early months of 2019 that the mother was planning to leave him. At paragraph 16 he said:
I thought Ms Cummings was planning to leave and I was so concerned that she would do the same to me as she did to her first husband; namely that she planned for months to leave him and the day after his birthday she took the children (E and F) to live with her at her parents home in Suburb K.
He expressed further such suspicions in paragraphs 17 and 18. Noteworthily, in paragraph 19 under the heading Incident of 4 May 2019, the father deposed:
There is nothing 1 need to add as my side of the story will be deemed irrelevant in light of the fact the matter has been dealt with by the courts.
Having traversed the criminal proceedings in other matters, the father relevantly continued at paragraphs 58-62 under the heading Mr H in the following terms:
Mr H is E and F's dad. On the 6th May 2019 upon hearing of the allegations made against me text me the following to the effect that" ... has E been exaggerating again? She is doing my head in too."
Around November of 2018 E decided she did not want to live with her dad Mr H anymore and became extremely insolent, rude and obnoxious towards him in front of people at her netball games, when picking up or dropping off for custody visits so much so that from March 2019 E came to live with us full time.
In April of 2019 Ms Cummings attended upon a psychologist and came home to me afterwards and stated words to the effect that "I am placing my victimhood on E and in turn she is seeing her dad through my eyes."
This was a clear indication that all the negative things Ms Cummings had said about E's father finally made it into E's mind and she began to resent him believing that he was emotionally abusing her as Ms Cummings alleged he had done to her in their 10 year relationship.
In June 2021 while 1 was walking my dog around Suburb L Park Mr H pulled over in his 4 wheel drive and proceeded to tell me a story to the effect that "E accused him of sexually assaulting her." This incident has occurred a few months previously and as a result of this he packed her bags and dropped her off at Ms Cummings's house and, at least up to June 2021, he had not and did not want to see her again. This was the second such incident against Mr H with the first being around 2016/2017 when he was interviewed by SECASA Suburb M and nothing further eventuated. He was afraid, because of what had happened with me, would happen to him.
In his case outline filed 12 January 2012 the father said at paragraphs 10-11:
The only risk to X lies in the respondent mother's mind only.
I am very concerned having time with X unsupervised in case the respondent mother instigates another allegation against me and this time with police involvement I will go to jail no matter what I say in my defence.
The final affidavit to which reference needs to be made is that of Emily Stephenson filed 12 January 2021. She is a psychologist, clinical and forensic registrar who undertook a psychosexual assessment of the father, meeting him on 15 November 2021. It will be recalled that this was after his criminal law proceeding had been finalised.
At paragraph 24 the report notes the father's assertions that he felt that the relationship with the mother was deteriorating in 2019. At paragraph 33 the report noted:
Mr Cummings denied the offending stating, “it didn't happen”. He denied offering E a massage and said he had given her massages when she was younger but that more recently she had become “challenging”, and would not want him to touch her . Mr Cummings reported that E had talked about sore shoulders, but that he had been “suspicious” of this at the time, indicating his belief that E had planned to make an accusation against him. Mr Cummings reported that E was “super emotional” and he believed she would have “fought back” if he touched her inappropriately. Mr Cummings denied that he had been intoxicated but did not deny he had been drinking when the offence occurred. Ms Cummings reported to police that she and Mr Cummings discussed the assault after E's disclosure and that Mr Cummings asked Ms Cummings to forgive him but, when asked about this, Mr Cummings said, "I don't recall that".
The report traversed the risk assessment process undertaken by the Static-99 test. I note that at paragraph 42 the report said:
Recidivism estimates provided by the Static-99 are group estimates based upon re-convictions, hence, they do not directly correspond to the recidivism risk of an individual offender. Further, the tool does not include consideration of dynamic risk markers. Hence, while the Static 99 is generally used as a good starting point for risk decision making, the RSVP also has also been utilised to address some of the caveats described above and to provide information to assist with risk management and treatment planning .
The report went on to traverse the RSVP test, and noted at paragraph 45:
Regarding the domain of psychological adjustment, there is partial past and recent evidence of problems with extreme minimisation or denial of sexual violence. This item was endorsed due to Mr Cummings' denial of having perpetrated the sexual assault. There is partial past and partial recent evidence of problems with self-awareness. Though it was difficult to assess Mr Cummings' self-awareness in relation to his offending because of his denial, there was evidence of problems with self-awareness more generally, particularly in relation to experiences of negative emotions and how he uses unhelpful behaviours to cope with these.
At paragraph 49 the report went on to say:
In considering the 22 risk markers within the RSVP, Mr Cummings displays evidence of few of these markers across most domains when considering his risk of sexual reoffending. Given this, Mr Cummings represents a "low" level of case prioritisation.
In paragraphs 53-54 the report went on to say relevantly:
As a result, when he was having relationship issues with Ms Cummings, he relied on increased time with their children to help him cope with his difficult feelings. It is conceivable that identification, paired with his reduced ability to meet his sexual needs with Ms Cummings and the disinhibition caused by the alcohol use, led to Mr Cummings' offending against E, It seems that Mr Cummings may have viewed E as a potential outlet for his sexual needs, due to his emotional identification with her. It may be that Mr Cummings found himself aroused when giving E a massage, and because of the factors previously mentioned, failed to stop himself from acting on this arousal in an inappropriate way . The information provided by Mr Cummings does not indicate that he has a specific sexual interest in children, however this discussion was limited by Mr Cummings' denial of the offending. If Mr Cummings did have a sexual attraction to children around the age E was when the offending occurred (12 years old), this would be indicative of a diagnosis of hebephilia, rather than paedophllia. Hebephllia refers to a sexual attraction to postpubescent children (aged 11-14) In comparison to prepubescent children, though the hebephilia diagnosis is currently speculative and is not included in the Diagnostic and Statistical Manual of Mental Disorders (5th edition) ,
After consideration of both the outcome of the Static 99 and the dynamic risk factors of the RSVP, it is my assessment that Mr Cummings' risk of sexual recidivism is low. As such, the literature in the area indicates that providing him with offence-specific treatment would be an "over-prescription" and may even contribute to his risk increasing. .
The report went on to note that the father could benefit from clinical psychological therapy.
I have traversed these materials in some detail because of the way the matter progressed in court. It is appropriate now to determine what was said at court. What follows is from my notes.
THE FIRST SUBMISSIONS
Counsel for the mother asserted that the father's most recent affidavit contained two elements. The first was that the complaint made by E had been orchestrated by the mother and that their evidence had been wholly fabricated at the mother's instigation as had the accusations made against E's father.
Counsel for the independent children's lawyer indicated that Ms N would be available to give evidence at 1.00 pm.
The father made an opening. He said it was a long two and a half years. It should be clear to the court that he had pleaded guilty and accepted the CCO. He was on the sex offenders list. He accepted his conduct and was remorseful. He then went on to detail the orders he seeks which would involve unsupervised time on alternate weekends in lots of four hours moving ultimately through to overnight time and half school holidays.
As things transpired, given that there has been some prior delay, it was then possible to call Ms N almost immediately.
Ms N adopted her affidavit as true and correct. Under cross-examination by Counsel for the mother it was put that she would have been better able to make the necessary assessment if the father had admitted his offence. Ms N said if she was able to explore his behaviour it would have given her a better understanding of the offending. Counsel asked if she had raised the CCO report with the father. Ms N wasn't able to say whether the report was raised or not. She had challenged the father but had not used the report. When asked if the father had made allegations that E had made it up Ms N said that the father had said that E had a history of making false accusations, but she was not able to say who with. She was then challenged about the assessment. Ms N said she was able to score. She would not have changed the assessment even if the father had admitted the offence. A sexual attraction to children would not have put him in the next bracket of risk.
Under cross-examination by the Counsel for the independent children's lawyer she was asked what factors would in fact elevate the father to the low to moderate bracket. Dr N says she uses two risk assessments. Static 99 looks at elements such as previous offences and the victim type. The RSVP is slightly different and she would consider the denial in the RSVP.
The father put a question to the effect that the proceeding was concentrating entirely about his offending but we were here about X. He asked whether there were any concerns about X spending time with him. Dr N said she could not say. The tools she used are about reoffending generally.
Prior to being sworn, the father said that at the moment he has two hours with X on Wednesdays with interpreters present. There are language difficulties. He has a phone app which turns speech into text. He seeks time. They will visit his parents, and his brother, and his friends. They will visit his two older children who are part of the Aboriginal community.
Having been sworn, the father was cross-examined by Counsel for the mother. The father conceded that he was charged and pleaded guilty to the offence. He said he accepted responsibility for it. He conceded they had been living as a family. He said we were here because of his time with X. He conceded that they had separated because of the sexual assault that was committed. He conceded that the Department of Human Services required supervision because of the assault on E. The father said he a right to change his plea. He said the delay of 18 months before he did so was because of COVID. When it was put he could have pleaded guilty at any time he said he couldn't and he didn't. He was asked if he recalled abusing E and said he did. He agreed in response to a question from the court that he sexually assaulted E and that he remembered it. I put this question because the answers given to prior questions had seemed to me unclear.
The father conceded that he has no communications with the mother. When asked if he thought that the mother was angry he was not in jail he said he is on the sex offenders list, he will be on the sex offenders list after his CCO. If false allegations are made against him they will believe it. Her affidavit was all about how it impacted her. When asked if he believed that E had planned the accusation there was no clear answer. It was put that this assertion made to Dr N was a recent intervention but the father said he had not made this up. Counsel put that he was suggesting the mother set him up but the father said he had not mentioned set up. He denied that it was his case that the mother engineered the incident to end the marriage. I asked Mr Cummings why, given that he had told the court that he admitted the offence and that the offence had been dealt with to completion in October 2021, he had told Ms N that he denied it. He said he was in denial. He went on, following further questions, to say that he has been in denial the whole time and still is. He has been accused and found guilty. He is in denial that he did it.
The father said that he had not yet engaged with a psychologist or a mental health assessment or undertaken a mental health assessment pursuant to the requirements of the CCO, and pointed out that this was only a very recent development. He recognised that he had committed a breach of a trust for Ms Cummings. There had been no reason for her to distrust him before that.
He was cross-examined about his assertions that the mother had lied, but when this was explored it emerged that these were matters of minutiae.
It should be noted that some of the questions put by Counsel, and indeed some of the answers, were somewhat hard to follow.
Under cross-examination by Counsel for the independent children's lawyer the father confirmed that he had not started his 250 hours of community work, not undertaken any assessment or treatment for alcohol abuse, not had a mental health assessment, and not been directed towards any offender behaviour programs. He said it was only a short time since the CCO. His next meeting with the officer is on 18 January. He just talks with an interpreter. All the things in the CCO will happen, but he has no idea when. It lasts for two years. He is seeking overnight time after the July school holidays. He will provide any court orders to the Community Corrections officer, and will also inform police.
He is seeking an order for shared parental responsibility and conceded this requires communications with the mother. He conceded the intervention order lasts until 7 December 2025, and that the mother wants nothing to do with him. When asked how shared parental responsibility would work he said he could not contact the mother. The only way is through lawyers at the moment. When pressed he appeared to accept that it would be acceptable for the mother to inform him about any decisions made about medicine or education. He went on to say that X has been well brought up and that the mother has done an excellent job. He is a delightful child.
There is five years to come in primary school and he wants some sort of joint decision about secondary schooling. He would like to know if there is a change of primary school. When asked how he communicates with X the father said he only sees him for two hours. The mother had said she would continue Auslan, but he wants him to speak in English and Auslan. There are no future obstacles for communications with X. When it was put that any loss of Auslan in the mother's home would be recoverable with him, he said it depends on how much time. Four hours would be better. He would not deny X speaking to the mother while they're in his time. He was amenable to changing times for special occasions. He was not aware of the parenting app, but he cannot email the mother.
In response to a further question to the court, he said that he is allowed to see other children but he cannot communicate with them.
THE EVIDENCE OF THE MOTHER
The mother is an allied health worker and adopted her affidavits as true and correct. In evidence-in-chief she was asked if the court was contrary to her position to provide for time, does she any proposal she could facilitate. The mother said she did not like to consider this at all. If there was any contact, the ultimate limit would be four hours once per week supervised by an adult. She wanted no contact between herself and the father and the matter to be reviewed. Exhibit R1, being a report from SECASA, was tendered as exhibit R1. The report notes that the mother has been, "actively engaged in trauma counselling with SECASA since 2019 in order to address the devastating impacts of the sexual assault against her daughter". The report went on to assert:
SECASA maintains the position that any chid living with or being in the care of a registered sex offender is at risk of potential harm, and advise that all necessary steps be put in place to prevent contact and maintain the safety of the child. SECASA work with survivors of sexual assault towards regaining a sense of safety and stability in order to heal. Ms Cummings and her daughter are at risk if they decline in their mental health and sense of safety/security with every interaction they have with the offender. This letter is to highlight these issues and to support Ms Cummings in her request to be sole carer for her son.
The letter is signed by Ms O as a “Clinical Lead Counsellor/Advocate”. It does not indicate what qualifications the author has that might touch professionally upon the issues at hand.
Under cross-examination by the independent children's lawyer the mother confirmed that apart from SECASA, she had attended a psychologist for a couple of sessions. The effect upon her is still devastating. She will get counselling in the future. She has applied to VOCAT now that the husband has pleaded guilty, and they may fund counselling which she would use. The events took place nearly three years ago. She is still eight out of 10 on a scale of discomfort. She had not failed to get counselling. She received ongoing counselling. SECASA is one hour every three to four weeks and is ongoing. She will also obtain further counselling. If contact continues she will try to find ways to heal, but it is very difficult.
When asked if it was important for X to have a father in his life, she initially said this was difficult to answer. She confirmed however, that ultimately she wants no contact. When asked about using a parenting app she said she was familiar with the idea of this but had not used it. She was not familiar with the app. When it was put that this was a free service and if she would be open to it, she said she would. She is opposed to the independent children's lawyer's proposals. The concept of shared care was unacceptable to her.
It should be noted that not only did the father face the restrictions on cross-examination arising out of section 102NA of the Act, but he had twice confirmed during the proceeding that he did not wish to cross-examine in any event.
FINAL SUBMISSIONS OF COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER.
Counsel submitted that the effect upon the mother and the sisters had been overwhelming. The questions was whether X should be treated differently. The independent children's lawyer encourages a relationship between the father and X. The court cannot order the mother to go to counselling because of Oberlin's case (Oberlin & Infeld [2021] FamCAFC 66) but it was submitted that it was clear the mother will seek support. X knows nothing of the past events. There was no necessity for supervision. The father seeks some hours on Saturdays and Sundays for four hours. Counsel submitted that another adult should be in substantial attendance for the first one to one and a half months. He was not sure if Auslan interpreters were available. Christmas and special days should be shared. The parties should use the AppClose app and there should be no other contact. X is six this year and seven next year. The time that the father sought was not untoward.
FINAL SUBMISSIONS OF COUNSEL FOR THE MOTHER
Counsel noted that X had been next to his sister during the second episode of abuse. There had been no reason for distrust before. It had had a cataclysmic effect. The father has pleaded guilty, but says he is in denial. As recently as the previous week he had been accusing the mother in respect of E's father. He had told Ms N he had suspected E. The father seeks to blame the victim and the mother. It was submitted there are two matters relevant to X. The father has no insight into his offending and only made his concession to get his CCO. He could have pleaded guilty in March 2020, and only did so on 20 October 2021.
There is no treatment for the father's proclivities. There is no evidence that there is less risk because X is a boy and younger. There is no evidence of the father as parent. Risk of offending compared to other sexual offenders was not evidence that the father will not do so. Until the father behaves consistently with an understanding of his offending, the relationship between the mother and X will be compromised. The father says that X is starting to behave in an autistic fashion. The father says that there is not adequate Auslan. The father says the mother will fabricate further charges. It is conceded that X will have to find out eventually.
The second aspect was the mother. Counsel referred to Re Andrew [1996] FamCA 43. There was an impact on the daughters because there was no plea. There is no acknowledgement by the father. The mother has great fear about the child being alone with the father, even though she has been able to bring a brave face to every instance of contact. The mother should have sole parental responsibility and there should be not time with the father. If there was to be time the question, derived from Re Andrew, is whether the risk could be ameliorated. It needed another adult present. There should be no communication between the parents. The family violence meant that the presumption of equal shared parental responsibility was rebutted, but the father should notify the father of serious matters. If time was ordered, there should be interim orders and a family report. Changeover would require a third party.
FINAL SUBMISSIONS BY THE FATHER
The father referred to his becoming a parent for the first time 24 years ago with Ms B and 22 years ago with Mr D. They were two and four when he separated. He worked from home and was able to look after the children accordingly. The children had lived with them both together. He referred to his car accident in July 2021 and his hospitalisation. They married in 2013 and X was born in 2016. He was involved in every aspect of X. He has a property of a third of an acre. They talked about the trees and the flowers. He was sorry for the hurt and trauma he had caused, sorry will never be enough.
X should not be punished for his mistake. The mother had done a good job on X, who was a lovely kid. His signing will develop more with more time. On 20 January 2021 he had started a 10 week mental health plan. He had another 10 week mental plan in 2019. This was to enable him to have some insight into his offending. He is completing all of the CCO conditions, and he loves X dearly and misses him every day. He wants to continue this loving relationship. He wants X to see his grandparents and the father's other children. He was prepared to use the app only. He wanted time on special days. He is not allowed near her house and would like pickup from his home.
He said that ongoing changeover by a third party is not possible. The mother can come to his house without bitterness. He wants shared care with X. He then finally said, perhaps somewhat surprisingly, that he did not abuse her. It was not in his nature.
THE STATUTORY PATHWAY
The statutory pathway is described by the Full Court in Goode v Goode [2006] FamCA 1346 at [65]:
In summary, the amendments to Part VII have the following effect:
1.Unless the Court makes an order changing the statutory conferral of joint parental responsibility, s 61C(1) provides that until a child turns 18, each of the child’s parents has parental responsibility for the child. “Parental responsibility” means all the duties, powers, and authority which by law parents have in relation to children and parental responsibility is not displaced except by order of the Court or the provisions of a parenting plan made between the parties.
2.The making of a parenting order triggers the application of a presumption that it is in the best interests of the child for each of the child’s parents to have equal shared parental responsibility. That presumption must be applied unless there are reasonable grounds to believe that a parent or a person who lives with a parent has engaged in abuse of the child or family violence (s 61DA(1) and s 61DA(2)).
3.If it is appropriate to apply the presumption, it is to be applied in relation to both final and interim orders unless, in the case of the making of an interim order, the Court considers it would not be appropriate in the circumstances to apply it (s 61DA(1) and s 61DA(3)).
4.The presumption may be rebutted where the Court is satisfied that the application of a presumption of equal shared parental responsibility would conflict with the best interests of the child (s 61DA(4)).
5.When the presumption is applied, the first thing the Court must do is to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend equal time with each of the parents. If equal time is not in the interests of the child or reasonably practicable the Court must go on to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend substantial and significant time with each of the parents (s 65DAA(1) and (2)).
6.The Act provides guidance as to the meaning of “substantial and significant time” (ss 65DAA(3) and (4)) and as to the meaning of “reasonable practicability” (s 65DAA(5)).
7.The concept of “substantial and significant” time is defined in s 65DAA to mean:
(a)the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends and holidays; and
(b)the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
8.Where neither concept of equal time nor substantial and significant time delivers an outcome that promotes the child’s best interests, then the issue is at large and to be determined in accordance with the child’s best interests.
9.The child’s best interests are ascertained by a consideration of the objects and principles in s 60B and the primary and additional considerations in s 60CC.
10.When the presumption of equal shared parental responsibility is not applied, the Court is at large to consider what arrangements will best promote the child’s best interests, including, if the Court considers it appropriate, an order that the child spend equal or substantial and significant time with each of the parents. These considerations would particularly be so if one or other of the parties was seeking an order for equal or substantial and significant time but, as the best interests of the child are the paramount consideration, the Court may consider making such orders whenever it would be in the best interests of the child to do so after affording procedural fairness to the parties.
11.The child’s best interests remain the overriding consideration.
PARENTAL RESPONSIBILITY.
In this case there has clearly been family violence in the form of the assault upon E. It was conducted in the presence of X, albeit that X does not appear to have noticed it. The presumption is plainly rebutted. Even if it were not, given this history and given the inevitable consequential response of the mother, an order for shared parental responsibility is plainly not in X's best interest. In circumstances where the mother can scarcely even be in the same room as the father (her disgust at being in his presence was palpable during the entirety of the proceeding and most particularly when she gave evidence) the notion of cooperative parenting that might be fomented by an order for equal shared parental responsibility is utterly impossible. The mother should have sole parental responsibility and should notify the father of any significant decisions made about education or medical treatment or any serious illness as soon as practicable after the event.
The Spend Time and Communication Regime - The Primary Considerations.
The father says that it is in X's best interest to have a meaningful relationship with him, as well as his mother, and the independent children's lawyer supports that position. The mother plainly does not. I note that pursuant to section 60CC(2A) I am required to give greater weight to the consideration of the need to protect X from physical or psychological harm, from being subjected or exposed to abuse and neglect or family violence.
There are two discrete issues I will deal with before coming to the additional considerations.
What is the risk of further assault by the father?
Dr N is the independent expert whose evidence has been obtained. Her evidence puts the chance of further offending as low. I appreciate that this evidence is subject to a number of qualifications and/or possible criticisms. First of all, it appears to operate based on a level of generality. It does not provide person-specific outcomes. It may also have been a better or more complete report if the father had, in fact, admitted his offending to her. Nonetheless, she was clear, as I understood the matter, in cross-examination, that even if he had admitted it, it would not have raised him into the low to moderate range.
In the end, this is the evidence that the court has, and I think I am bound to accept it. In my view, the chances of the father abusing X are low.
The father's attitude to his offending
The father adopts the ridiculously simplistic position that the matter has been dealt with by the courts and is therefore irrelevant. This is a very concerning position.
Counsel for the independent children's lawyer submitted that the fact that the father says he is in denial does not mean that he does not admit the offence. I do not agree. Although the father said that he had admitted the offence and was sorry for it, the answer that he is in denial, which he was palpably reluctant to give, suggests that, even now, he is unable to accept that he did what he obviously did do. This conclusion is fortified by the combative and, at times, offensive messages that the father has sent in correspondence, with its entirely accusatory, self-justifying criticisms of the mother. It achieves a particular focus in his very offensive insinuation that either the mother had, in some fashion, induced E to make false assertions to assist her intention to separate, and/or that E was in the habit of making unsubstantiated allegations. These assertions were being made in affidavit material filed as recently as 7 January 2021. I think that the father still harbours what, in my view, are baseless suspicions that the incident either did not occur or was, in some fashion, engineered by the mother. He denied having the point of the view that the mother had set him up, in his evidence, and he did not, it is true, use that term in his affidavit material. The inference that that is what he really thinks, in my view, is a strong one.
The failure of the father, truly, to confront and deal with his offending is not irrelevant to this proceeding. While of course there can be no question of further punishment of the father, this lack of insight is a significant deficit. It stands against him both in the sense that it shows an alarming self-obsession, and a determination to put his own interests first. More particularly, it operates most vividly upon the concerns that it reasonably gives rise to in the mother.
The Additional Considerations – Section 60CC(3)(a)
One of the striking features of this case is that the court does not have a benefit of either a section 11F report or full family report. The matter has been substantially delayed by the COVID-19 difficulties and so far as I can recall no one has sought an interim family report of any sort at any stage. This means that the court does not have the benefit of any direct expression of views by X. This is a significant deficiency which has simply arisen because of the unfortunate way this matter has lurched to determination. I propose to address it by obtaining a Child Impact Report.
Section 60CC(3)(b)
There is no question that X has an excellent and very well bonded relationship with his mother, who is his primary carer. There is no suggestion in the materials to the contrary. There is no suggestion that he has anything other than a loving relationship with his half siblings, with whom he lives. The evidence about his relationship with the father's two other children suggests that there has been little contact of recent time. They are, in any event, far older than he is.
Although there is no recent material from the supervisors, it is plain, as Counsel for the independent children's lawyer submitted, that X has an excellent relationship with his father, and a close and loving one at that. He was pleased to see his father, even on the first time he met him in 2020 after a fairly lengthy gap. Given that he was then only four years of age, that speaks volumes. One might reasonably have expected some hesitancy, but there was none. I accept, as Counsel for the independent children's lawyer submitted, that the ongoing supervised time has been unremarkable. The supervisors would certainly have brought any concerns to the attention of the parents.
Section 60CC(3)(c)
Plainly the mother has, as the primary carer, taken all necessary steps to participate in making decisions about X and to spend time and communicate with him. The father’s capacity to do so since the events in 2019 has obviously been much more limited. Plainly he has pursued his case energetically to judgment and that speaks for itself.
Section 60CC(3)(ca)
Once again, plainly the mother has fully fulfilled her obligations to maintain X. This aspect of the matter did not receive an enormous amount of attention during the trial, but if I understand the matter correctly the father pays child support as assessed.
Section 60CC(3)(d)
In view of the observational reports provided to the court, it seems very likely that increased time between X and his father would in a general sense be good for him. It seems very possible at the least that his Auslan capacity will expand and this will enable greater communication with his father. The father’s simplistic view that any difficulties faced by X stem largely if not solely from any diminution of time with him is of course completely misconceived. Nonetheless, the father appears to have a relatively large property and would be able to well entertain X when he is with him.
The significant issue of course under this heading is the affect upon the mother and E in the event that any orders are made for the father to spend time with X.
The mother's unchallenged evidence about the effects upon her of the assault on E and also the effects on E are described in her trial affidavit. As I have indicated, they make distressing reading. There is no earthly reason to doubt the sincerity of the mother's evidence, and its accuracy, in this regard. Her concerns would only have been heightened by the unpleasant and insightless attacks made upon her from time to time by the father in his affidavit material and correspondence and, indeed, even in the court itself. Her anxieties are entirely understandable.
The one thing I do note in this regard, however, is that notwithstanding the correspondence from SECASA, it does not appear that the mother has engaged significantly in wholly independent counselling to assist her with her difficulties. Clearly, SECASA is of the view that, in each and every case, any kind of assault should lead to a total sundering of all time. While it is easy to see why that is the position of such a body, the court is required to consider X's best interests in a more complete way. I have a suspicion that with more nuanced assistance, the mother may be able to make the progress that, very understandably, she has not thus far been able to make.
Section 60CC(3)(e)
As I understand the matter there is no issue of expense in the orders that the father seeks, or indeed those proposed by the mother. The practical difficulty that arises plainly is the abhorrence that any order for time will bring about in the mother and it would appear also to E. I have however, just dealt with this matter above.
Section 60CC(3)(f)
There is nothing to suggest that each of X’s parents are unable in any way to provide for his physical needs while in their care. The mother’s capacity to provide for X’s emotional needs faces the deficiency that she is not able to see that having a father in his life is to his benefit. In saying this I should emphasise as strongly as I can that I am not being critical of the mother for holding this point of view. It is an imminently understandable one in these circumstances.
The father’s deficiency lies in his unpleasantly self-righteous assertion, already commented on above, that his offence is over and done with and irrelevant. It is also limited by his demonisation of the mother and his unpleasant and unfounded assertions that in some way she and/or E fomented the accusations made against him. If the father is unable forthwith to desist from all such criticisms of the mother and E, this will be an extremely poor harbinger for X’s future development. One does not need to be a psychiatrist to understand that the sort of correspondence that the father has seen fit to send in the past, when relayed to the mother, as it obviously has to be by her solicitors, will only go to damage her mental health and well-being.
Section 60CC(3)(g)
As best I understand it X is a normal child developing appropriately for a child of his years. I have already commented on the personalities of the parents above.
The father’s character seems to me to involve an unpleasant mix of predatory sexual conduct, denial of the conduct, self-righteousness more generally in relation to his conduct and its sequelae and the consequential lack of contact with X. These are unattractive features, but it needs to borne in mind that he does love X and X loves him.
The mother struck me as being totally beaten down by the entirety of this experience including no doubt the trial itself. She has managed, one might even say heroically, to present X for all the occasions of spend time with the father with what Counsel rightly described (in the face of all the reports) as a brave face. She deserves a great deal of credit for doing so. The extent to which she will not be able to sustain any form of ongoing time is as I have indicated problematic.
Section 60CC(3)(h)
This is irrelevant.
Section 60CC(3)(i)
While important, this sub-section has probably already been traversed. The father’s attitude towards X and the responsibility of parenthood is to an extent self-centred and possessory. As already indicated more than once he is self-righteous. He shows no insight into his offending and the effects of his offending upon the mother and E with whom it should be steadfastly remembered X spends almost all of his time.
Section 60CC(3)(j)
There is no doubt there has been family violence. The assault on E is a paradigm example.
Section 60CC(3)(k)
There is an intervention order in place until 2025. The father expressed something akin to disparagement of this suggesting he proposes to review and it was wholly unnecessary. The fact the police sought fit to seek such an intervention order and for such an extended period of time is a relevant consideration pursuant to sub-section (3)(k).
Section 60CC(3)(l)
I would very much prefer to make final orders now but given the conclusions at which I have arrived this will not be possible.
Section 60CC(3)(m)
In the end, this case boils down to some very fine points. Either the father must be excised permanently from X's life, or not. If he is not, will the effects upon the mother be so damaging (and the effects upon E) as to override the benefit to X of having a relationship with the father whom he loves? It is, in truth, as simple as that.
If I excise the father wholly from X's life, then it can be said, with certainty, that X will suffer the loss of that relationship and of any contact with the paternal family; at least, until he is an adult.
On the other hand, if I make orders for some time, it is possible, much as it appears difficult at the moment, that the mother may be able better to reconcile herself to such time. It should be noted in passing that even in the earliest days of this dispute, the Department of Human Services took the view that it was desirable for X to be having time with his father, albeit supervised.
CONCLUSION
I have found this a deeply disturbing and difficult matter. I cannot recall a harder decision I have been required to make. In the end, I think that X's best interests will be made by the one proposal that the mother was prepared to contemplate, namely four hours of time each week supervised by another adult. I propose to make that order, and to make the matter returnable in late April 2021. During the intervening period, it will be possible for the mother to demonstrate whether or not she can cope with such a regime, and its possible future development and expansion. She may also, if so advised, be in a position to put on independent expert evidence as to the difficulties that this regime imposes.
I have decided not to make final orders now because it is not in X’s best interest to do so. We need to know more about the mother and E’s capacity to sustain the limited spend time regime that I am adopting. We also in my view need to know how X finds it. In the end, although it puts the matter shortly, the court simply does not have a sufficient indication of the workability of the proposed regime for final orders to be made. I will consider whether it is possible to make final orders, or to order a further trial with a full family report when this matter returns before me in April.
There will be, as indicated, an order for sole parental responsibility, and any communication between the parents is to be via the AppClose, something they both agreed with in court.
The question of changeover, which I have not previously commented on, is another concerning aspect of the father's lack of insight. Because of the intervention order, he wants the mother to bring X to him "without bitterness". This breezy insouciance to his own misconduct is yet another indication of it. Changeover will have to be conducted by the supervising adult, or by an independent agent. I will hear the parties on this aspect of the matter as the father did not address it in terms, and the capacity of his daughter Ms B to assist has not been indicated.
I certify that the preceding one hundred and six (106) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Burchardt. Associate:
Dated: 27 January 2022
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