D and P

[2009] FCWA 60

[2009] FCWA 60

JURISDICTION	:	FAMILY COURT OF WESTERN AUSTRALIA
ACT	:	FAMILY COURT ACT 1997
LOCATION	:	PERTH
CITATION	:	D and P [2009] FCWA 60
CORAM	:	PENNY J
HEARD	:	13, 14 & 15 JANUARY 2009
DELIVERED	:	22 MAY 2009
FILE NO/S	:	PT 2765 of 2006
BETWEEN	:	D Applicant/Father
AND
P Respondent/Mother
Catchwords:

Children's issues - father currently in prison - father's application for child to live with him upon his release, and with his sister until his release - Single Expert's recommendation that father have no contact with child - father's application dismissed - father restrained from bringing further applications to spend time with child without leave of the court until certain conditions met

Legislation:

Family Court Act 1997 - s 66(c)

Category: Not Reportable

[2009] FCWA 60

Representation:

Counsel:

Applicant	:	Self Represented Litigant
Respondent	:	Ms F Veltman
Independent Children’s Lawyer	:	Ms J Johnston

Solicitors:

Applicant	:	N/A
Respondent	:	Lyn Zinenko
Independent Children’s Lawyer	:	Calverley Johnston

Case(s) referred to in judgment(s):

Nil

[2009] FCWA 60

1 The applicant father, [Mr D], and the respondent mother, [Ms P], are the parents

of the child [Jonathan] who was born on 20 January 2002. At the time of filing his application and at trial [Mr D] was a sentenced prisoner. At the commencement of trial he sought orders that [Jonathan], who was then residing with [Ms P], should instead reside with [Ms G], his sister. Upon his release from prison it was his case that [Jonathan] should then live with him, and that [Ms P] should only spend supervised time with [Jonathan].

2 [Mr D] has not seen [Jonathan] since mid-2006, when [Ms P]’s mother, [Mrs L], last took [Jonathan] to the prison. [Jonathan] had not seen [Ms G] since about 2005. At trial [Mr D] made serious allegations about [Ms P]’s ability to care for [Jonathan] and alleged that [Jonathan] had been sexually abused by [Ms P]’s partner, [Mr E].

3 It was the opinion of [the Single Expert], and the Independent Children’s

Lawyer, that [Jonathan] should continue to reside with [Ms P] and have no contact at all with [Mr D]. It was [the Single Expert]’s opinion that [Mr D] would have to prove his ability to not re-offend and to be an appropriate role model for [Jonathan] for at least five years before he should be able to have any contact with him.

4 At the end of the trial [Mr D] conceded that [Jonathan] should continue to reside

with [Ms P], but submitted that five years was too long to be cut out of [Jonathan]’s life. He wanted there to be some hope for him to be able to resume his relationship with [Jonathan] earlier than the five year period recommended and, in the short term, at least wanted to be able to have some contact by way of letter and receive photos of [Jonathan].

5 This concession that [Jonathan] continue to reside with [Ms P] was appropriate.

I have no doubt that neither [Ms G] or [Mr D] have the capacity to provide for the special needs of [Jonathan], either on a short term or long term basis. [Mr D] has a history of serious sexual offending against women from the time he was a juvenile. The most recent charges for which he was imprisoned in 2005 related to sexual penetration without consent, deprivation of liberty and threats to kill. These offences were committed by [Mr D] upon women in a random fashion. One incident occurred in a cemetery where the complainant was visiting a grave and another where the woman was walking home at 8.00 pm.

6 [Ms G] does not believe that [Mr D] committed any offences of a sexual nature.

[Mr D] does not accept that he was guilty of the offences for which he was most
recently sentenced, despite having pleaded guilty to at least some of the offences.

7 The only issue for determination by me, therefore, is whether [Jonathan] should

have any contact at all with [Mr D] and, if he should, when that contact should occur
and what form it should take.

Background and history of the parties and the relationship

8 [Ms P] was 15 and [Mr D] was 18 when they met. [Mr D] was released from

gaol in March 1994 after he had been in prison for a number of offences, including breaking and entering, assault and aggravated sexual assault. In 1995 he was again

[2009] FCWA 60

imprisoned in the Children’s Court for indecent assault, for a period of approximately
nine months. [Ms P] visited [Mr D] in prison.

9 Upon [Mr D]’s release he lived with his sister, [Ms J]. [Ms P]’s father,

understandably, disapproved of the relationship between [Ms P] and [Mr D] and would not allow [Mr D] onto his property. In 1996, at aged approximately 16, [Ms P] moved out of her parents’ house into a [suburban unit] with [Mr D]. The relationship was off and on again between 1996 and 1999.

10 [Ms P] and [Mr D] moved into [another suburban unit] together in late 1999, or

the beginning of 2000. Around this time [Ms P] commenced working as a prostitute and continued in this occupation for a period of around five years with the consent and encouragement of [Mr D]. [Ms P] also had work during the day in an office environment. [Mr D] was in and out of work, but rarely kept a job for long.

11 [Ms P]’s home life, up until the time she met [Mr D], had been relatively

normal. It is hard to believe she thought it was appropriate to be in a relationship with someone who had a history of serious sexual assaults against women, who encouraged her into prostitution and who subjected her to numerous violent incidents.

12 [Mr D], on the other hand, had a difficult childhood. His parents divorced when

he was nine years old. He was the youngest of four children. He moved between the residence of his father, the mother and his sisters and as a consequence attended six different schools. His mother died when he was 19 years old.

13 [Mr D] did not have a happy time at school. He was disruptive, could not cope

with scholastic work and was involved in fights with others. He was eventually expelled from [his] Senior High School when he was 14 years old. He has done a variety of jobs since that time, none of which have lasted for very long.

14 In 1994 the Department for Child Protection recorded that [Mr D] was regarded

as a person “at risk of harming children”. There was an allegation that he had abused three children, although these allegations were not substantiated. [Mr D]’s sister, [Ms J], alleges that in 1998 [Mr D] sexually abused her son. Her son has never made a statement to the police as he was frightened of the consequences.

15 [Mr D]’s first conviction for aggravated sexual assault occurred in 1992 when he

was aged 15. In 1995 he was imprisoned for indecent assault. After this time he was in a relationship with [Ms P]. The serious offences for which he was imprisoned in 2005 are alleged to have occurred in September 2000 and October 2003.

16 [Mr D] initially pleaded not guilty to the offences which occurred in 2000 and

2003. He was not arrested in relation to these offences until 2004. On the morning of trial he changed his plea to guilty in respect of at least some of these offences. He says he did this in order to save the victims having to give evidence. He denies he is guilty of the offences.

17 After [Mr D] was imprisoned [Ms P], for a time, continued her relationship with

[Mr D]. There were numerous telephone calls between [Mr D], [Ms P] and [Mrs L] when he was in prison. [Ms P] and [Mrs L] took [Jonathan] to see [Mr D] in prison

[2009] FCWA 60

for some time. [Ms P] then commenced a relationship with [Mr E] and did not attend the prison as frequently. [Mrs L] continued to take [Jonathan] to see [Mr D] in prison until around mid-2006 at which time [Jonathan] allegedly disclosed to [Mrs L] that [Mr D] had touched him in a sexual fashion.

18 [Ms P] and [Mrs L] then refused to take [Jonathan] to see [Mr D]. [Mr D] filed

an application for final orders on 18 May 2006 seeking an order that [Jonathan] reside with his grandfather or his sister until his release from prison. On 30 May 2006 he filed a Notice of Risk of Child Abuse. That notice was withdrawn and re-issued on 19 June 2006. In that notice he alleged that [Mr E] had sexually abused [Jonathan], as [Jonathan] had told him this on the telephone. He also alleged that [Jonathan] had been physically abused by [Mr E] and [Ms P].

19 The Department for Community Development investigated the allegations made

by [Mr D]. After making enquiries from their own files in relation to both [Mr D], [Ms P] and [Mr E], assessing [Jonathan] and discussing the issues raised with child care staff, the Department determined that there did not appear to be any identified concerns for the wellbeing of [Jonathan], apart from the fact that he appeared to be developmentally delayed. In particular, they noted the opinion of the child care staff that [Jonathan] was not exhibiting signs of sexual abuse and there had been no sighted injuries noted which would confirm that he was the subject of any physical abuse.

20 An Independent Children’s Lawyer was appointed to represent [Jonathan] and

subsequently a Single Expert, Mr De Rooster, was appointed to investigate the allegations and make recommendations in relation to the application made by [Mr D]. During the course of his investigations, [The Single Expert] interviewed [Mr D], [Ms P] and [Mr E] and perused subpoenaed material.

21 [Mr D] was assessed by [the Single Expert] using the Minnesota Multiphasic

Personality Inventory II. This test indicated [Mr D] was a person with long term, severe social maladjustment. [The Single Expert]described him as having:

“A poorly integrated personality, and tends to be unreliable, eccentric and irresponsible. [He] may present with a good social façade, and may make a good initial impression, however, he is socially alienated from mainstream society, disregards the rules, norms, and values of society and behaves as he sees fit.”

22 He later went on to say:

“The history, interview and psychometric information indicated that [Mr D] suffers from a personality disorder which is usually described as ‘anti-social personality disorder’. People with such a profile usually find themselves in trouble with the law, incarcerated, and will have numerous unsuccessful relationships with people of both genders. The heterosexual relationships will be characterised by continual conflict and aggression. [Mr D]’s history, in combination with his Minnesota Multiphasic Personality Inventory II profile, indicates that he can be a danger with regard to physically and sexually abusing women.”

[2009] FCWA 60

23 He went on to say that his ability to meet [Jonathan]’s needs would be

compromised as a result of his personality disorder and consequent behaviour would
prevent him from being a good role model for [Jonathan].

24 [Mr D] disputed [the Single Expert] assessment of him and submitted that the

results of the test were not valid as he did not have good reading and writing skills and did not understand all of the questions in the test. [Mr D] has produced a number of documents and handwritten notes which have been handed up in Court. I have no doubt that he reads reasonably well. His writing shows that his grammar and spelling are not good, but I am satisfied that his general understanding of written English is probably not much less than average. [The Single Expert] stated that even if there were some difficulties incurred by [Mr D] when he completed this test, his history and the manner in which he acts confirmed his opinion as set out in his report.

25 During the course of the relationship with [Ms P], [Mr D] agrees that he was

violent to her on occasions. [Mr D] confirmed that acts of violence have included throwing a rock through a car window, smashing furniture “now and then” and smashing a wall unit air conditioner when fighting over drugs. He confirmed there had been domestic violence since before [Jonathan] was born, but not in front of him. He agreed he destroyed property during the relationship, but not in front of [Jonathan].

26 There was, however, an incident where the police were called to the house by

[Ms P]. [Jonathan] had been left in the house with [Mr D] and she was concerned for his safety. [Mr D] confirmed that when the police officers attended he fought them because they were trying to take [Jonathan] away from him. [Jonathan] witnessed this violence. This would have been highly distressing for him.

27 [Mr D] confirmed that he used drugs during the course of the relationship. He

said he did not use drugs for about 19 months between 1996 and 1998. He stated that he knew he had a problem with drugs before he went to prison in 2005. He tried to get counselling, but could not get it. He gave evidence that he rang Palmerston and other drug rehabilitation centres and requested counselling. He said he was refused counselling until such time as he was convicted. I do not accept that was the case. If [Mr D] had been genuinely interested in rehabilitating himself, one of the drug rehabilitation centres would have taken him in even if he had to wait a time to be assessed.

28 [Mr D] says that he will not be violent when released from prison as he has

completed a violent offenders course in prison. He stated he did not have to do the sexual offenders programme. Given that [Mr D] says he was the victim of a sexual assault in prison and that he had been sexually abused as a child, he should complete such a course.

29 Even though [Mr D] conceded at the end of the trial that [Jonathan] should

continue to live with [Ms P], there are a number of concerns he raised about [Ms P]
and her ability to care for [Jonathan], which are serious and I should deal with them.

[2009] FCWA 60

[Ms P]’s ability to care for [Jonathan]

30 The first issue raised by him was [Ms P]’s ability to care for [Jonathan], given

the comments made by her in the telephone conversations with him which occurred after his imprisonment in July 2005. Some recordings of these calls were played by [Mr D] in court. It was shocking to hear the way [Ms P] spoke to [Jonathan]. Her language was appalling. She threatened him and shouted at him on a number of occasions. This behaviour, in my opinion, was not excusable, but it is necessary to put the conduct in context.

31 The relationship between [Ms P] and [Mr D] had been one characterised by

violence and abuse. For a period of five years during the course of the relationship [Ms P] worked not only a day job, but as a prostitute as well. During the course of the relationship [Mr D] was mostly unemployed. After [Mr D] was imprisoned, he would ring [Ms P] very frequently, he conceded five times per day. [Mrs L], [Ms P]’s mother, and [Ms P] alleged it was more like 10 to 20 times per day. After hearing the contents of [Mr D]’s phone calls I could see how [Ms P] would get frustrated. All he would do was tell [Ms P] how much he loved her. All he wanted was contact with the outside world. He did nothing to assist her as a young, single mother struggling to earn money and look after [Jonathan].

32 [Ms P] stated that at the time she made the comments on the phone, she was

deliberately saying these things so as to put [Mr D] off her so he would no longer phone her. I do not accept this explanation. While [Ms P]’s conduct at that time towards [Jonathan] was shocking, there is no evidence that she ever carried through with any of the threats she made to hurt him or that she neglected him, but I have no doubt that this conduct contributed towards the developmental difficulties now affecting [Jonathan].

33 The evidence shows that since 2006 [Ms P] has developed as a person and as a

mother. [Jonathan] has significant developmental delays and educational difficulties. These are all being met appropriately by [Ms P], [Mrs L] and [Mr E]. He is having appropriate treatment with a speech pathologist, the Child Development Centre and the problems with his eye sight have been treated. According to [ the Expert Witness] in this matter, he observed [Ms P] to have a close relationship with [Jonathan]. In his observation, [Ms P] had provided [Jonathan] with an affectionate, secure and stable home and appropriate social interaction with others.

34 When [the Single Expert] prepared his final report for the court in December

2008, he reported that [Ms P] and [Mr E] maintained stable work, family and social relationships and ensured [Jonathan] received treatment for his special needs, ie speech therapy, occupational therapy and therapy to improve his behaviour.

[Ms P]’s drug taking

35 [Mr D] was concerned about the fact that [Ms P] was taking drugs after they

separated. She had denied this occurred. [Ms P] was cross-examined by [Mr D] about her drug use. She denied having used amphetamines or having used drugs after [Mr D] was in prison. [Mr D] produced prison records which indicated on three

[2009] FCWA 60

occasions [Ms P] was turned away by prison officials who would not let her visit
because sniffer dogs detected the smell of cannabis on her.

36 After [Mr D] went to gaol [Ms P] stated she did not work as a prostitute. [Mr D]

played a recording of a conversation he had with [Ms P] when he was in prison where she indicated that she was working as a prostitute and that she had received $500 worth of “white stuff” from a client. When [Ms P] was confronted with this evidence she could not respond or have an explanation for it. When cross-examined by the Independent Children’s Lawyer [Ms P] admitted she had used amphetamines for work as a prostitute. She stated that the last time she smoked cannabis was in 2005 and said she had not used amphetamines since [Mr D] went to gaol. I do not accept her evidence in respect of either of these matters and believe it is highly likely that she was using cannabis and amphetamines shortly after he was sent to prison.

37 Given the evidence about the appropriate manner in which she now cares for

[Jonathan] and her settled domestic situation, I am satisfied that it is most unlikely that she now uses amphetamines, but she may use cannabis from time to time. [Mr E] accepted that he uses cannabis on occasions. If she and [Mr E] are using this drug, it does not appear to be in such a quantity that it impacts on the ability of either of them to care for [Jonathan] or function appropriately.

38 In general, I did not find [Ms P] a truthful witness. Not only did she lie about

her drug use, but also about other matters. [Ms P] had provided an alibi for [Mr D] by way of a Statutory Declaration before his trial in 2005. Subsequently, she stated that the day was wrong in the Statutory Declaration. In 2003 [Ms P] signed a document directed to Centrelink stating she had given the custody of [Jonathan] to [Mr D]. The reason for doing this was so that [Mr D] could approach Centrelink and obtain a benefit because he was caring for [Jonathan]. [Ms P] was working at the time and not entitled to a benefit. [Ms P] lied in the document.

39 Although she has lied about a number of matters, I am still satisfied that her care

of [Jonathan] is appropriate. The evidence as to her care has been independently verified to [the Single Expert] by persons who come in contact with [Jonathan], including school teachers and the Child Development Centre.

Did [Mr E] sexually abuse [Jonathan]?

40 [Mr D] alleges that [Mr E], [Ms P]’s partner, sexually abused children in the past

and has sexually abused [Jonathan]. [Mr E]’s childhood was difficult. His mother had five children from four different fathers. His father passed away when he was two years old. His mother “kicked him out” when he was 12 and he moved to several different residences and also lived on the street for a period. He lived in hostels provided by the Department for Community Development between the ages of 14 to 16. In 2005 he moved into [Ms G]’s home, the sister of [Mr D], and there he met [Ms P]. They commenced a relationship after [Mr D] was imprisoned.

41 In response to the Form 4 notification alleging child abuse, the Department for

Community Development prepared a report. In that report it was stated, in relation to [Mr E], that he and a female sibling were apprehended by the Departmental officers

[2009] FCWA 60

after a male relative sexually abused the female sibling, and [Mr E] was a witness to the abuse. The report stated that [Mr E] was assessed as having an intellectual disability when he was 17 years of age. In 1997 it was reported that he had sexually abused a young female sibling aged 4, and he was reported to have re-offended against the same sibling in 1998. According to the Department, [Mr E] admitted the first instance of abuse, but denied the second allegation. The Department substantiated the allegations of sexual abuse.

42 [Mr E] attended five sessions of counselling in 1998. He did not go on to

complete the additional counselling recommended because his mother did not
facilitate it.

43 When interviewed by Mr De Rooster, [Mr E] denied each of these allegations of abuse. [The Single Expert]stated in relation to these incidents:

“From a clinical perspective the abuse needs to be seen within the context of [Mr E] growing up in a chaotic family of origin, where his mother probably had several male partners and the impact of these men on [Mr E]’s development is unknown, but can be assumed to have impacted on at least consistency and predictability in his childhood years. [Mr E] has since left these circumstances and has attempted to educate himself in various areas and seems to have developed into a responsible and stable adult. During the assessment, there were no direct concerns regarding [Mr E]’s sexual orientation or adaptive behaviour style.”

44 [Mr E]’s family of origin was dysfunctional and he was exposed to a relative

sexually abusing his sister. I am not surprised he had his own problems during his teenage years. To his credit, he has now been in stable employment for a number of years and provides for [Ms P], their baby, [Jane], and [Jonathan].

45 [Mr D] stated that [Jonathan] advised him in a telephone call that [Mr E] had

sexually abused him. I heard a recording of that conversation in Court. [Jonathan] responded in the affirmative when it was put to him by [Mr D] that [Mr E] had abused him. In his evidence, [Mr D] stated that he did not suggest that it was [Mr E] who had inappropriately touched him. That was not the case.

46 In my view, no weight can be given to the response given by [Jonathan],

particularly as, at that time, [Jonathan]’s speech was poor and he suffered from
significant developmental delay,

47 In 2007 he was questioned by an officer of the Department for Community

Development as to whether [Mr D] had sexually abused him. He made no disclosure when questioned about this, but at that time his verbal skills were described as being very limited and his speech and understanding capacity were not of a sufficient level for him to be interviewed.

48 I am satisfied that [Mr E] has not sexually abused [Jonathan]. I am also satisfied

that he has provided [Ms P] and [Jonathan] with a stable and secure environment,
which has been to the benefit of [Jonathan].

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Best interests of [Jonathan]

49 In determining the issue of what time, if any, [Jonathan] should spend with [Mr

D], and what form that time should take, I must have regard to [Jonathan]’s best interests as the paramount consideration. In determining what is in [Jonathan]’s best interests I must take into account the matters set out in s 66(c) of the Family Court Act 1997. The primary considerations set out in this section are:

• The benefit to the child of having a meaningful relationship with both of the child’s parents, and

• The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

50 [Jonathan] was exposed to family violence when [Mr D] and [Ms P] lived

together. He was also exposed to verbal abuse from [Ms P] after [Mr D] went to gaol. Sadly for [Jonathan], this exposure to his parent’s conduct has had serious consequences for him.

51 [Jonathan] has suffered greatly as a result of being exposed to violence in his

early childhood. In the last two years in particular he seems to have improved. The gains made by [Jonathan] have been assisted by the fact that [Ms P] and [Mr E] now provide [Jonathan] with a stable and secure environment. I do not accept [Mr D]’s proposition that [Mr E] has sexually abused [Jonathan]. On the contrary, in my opinion, [Mr E] has been a positive influence on both [Ms P] and [Jonathan].

52 In my view, any direct contact with [Mr D] in the short term will not result in

[Jonathan] having a meaningful relationship with [Mr D]. I am not satisfied that [Mr D] is able to function in the community without resorting to anger and violence, and without offending. It is essential that [Jonathan] be protected from any further psychological harm, from being subjected to or exposed to abuse, neglect or family violence.

53 There are other matters I must take into account when considering [Jonathan]’s

best interests. [Jonathan] has an excellent relationship with his mother and [Mr E]. He has a very good relationship with [Jane], the child of [Ms P] and [Mr E]. He also has a close relationship with [Ms P]’s mother, [Mrs L], who has been of great assistance to her since [Mr D] was sent to gaol.

54 [Jonathan] has not seen [Mr D] for almost three years. According to [Mrs L],

shortly before she ceased taking [Jonathan] to see [Mr D], [Jonathan] stated that he did not like his “yukky Dad” and alleged that his father had sexually interfered with him. On the evidence available I cannot be satisfied to the requisite standard that this abuse occurred, but I am satisfied that [Jonathan] was fearful of his father.

55 Should [Jonathan] have any direct contact with [Mr D], it is possible that all the

gains he has made as a result of the stable environment in which he is now settled would be lost. [Mr D] has a very poor opinion of [Ms P], as does his sister [Ms G]. I have no doubt that [Mr D] would be unable to restrain himself from making negative comments about [Ms P] to [Jonathan].

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56 At the present time [Mr D] has no capacity to appropriately care for [Jonathan]’s

needs. [Jonathan] suffers from very serious developmental delays and problems, which may have been caused by difficulties at his birth, but certainly have been contributed to by being exposed to [Mr D]’s violent personality. [Mr D] was very reluctant to take any responsibility at all for his conduct during the course of his relationship with [Ms P]. In evidence he stated that the difficulties [Jonathan] exhibited at the moment must have come about as a result of him living with [Ms P]. He has not taken any responsibility for any of his offending, and particularly the sexual offending. Without attending a sexual offenders treatment programme and having counselling in the community, I find it hard to accept that [Mr D] will ever be able to desist from this type of offending.

Conclusions

57 [Jonathan] is now aged 7 years. The next few years are important years

developmentally for him. It is essential that nothing occurs which is likely to upset or distract him over that period. Because of this fact, it is appropriate that there be no contact between [Mr D] and [Jonathan] until he is at least 10. [Mr D] would like to at least be able to contact [Jonathan] by letter or by sending him cards for special occasions. I cannot see that there would be any benefit to [Jonathan] by having this contact, unless there was a strong likelihood that contact would develop between [Jonathan] and [Mr D]. To just receive a birthday or Christmas card, or present “out of the blue” might be more likely to confuse [Jonathan] than to benefit him. This situation could be reviewed when [Mr D] has completed the following milestones:

• has been released from prison for at least three years and satisfactorily completed conditions of his parole, if granted;

• has not offended during those three years; and

• has attended counselling in the community to deal with his anger management.

58 If [Mr D] can meet these conditions he should then be able to bring proceedings

to determine, at that time, the best form of contact to take place to re-introduce him to [Jonathan]. In the meantime, [Mr D] is restrained from bringing proceedings in respect of spending time with [Jonathan], except with leave of the Court.

I certify that the preceding [58] paragraphs are a true copy of the reasons for

judgment delivered by this Honourable Court

Associate