Deeley and Dervin

[2013] FamCA 353

FAMILY COURT OF AUSTRALIA

DEELEY & DERVIN [2013] FamCA 353

FAMILY LAW – CHILDREN – With whom a child lives – Where the Father filed a notice of discontinuance and did not appear at the trial – Where the Father has been convicted of seven counts of indecent treatment of the Mother’s daughter from a previous relationship – Where the Father has not seen the subject child since 2008 save for one or two brief occasions – Where the Independent Children’s Lawyer supports the making of final parenting orders as sought by the Mother

Family Law Act 1975 (Cth)

APPLICANT: Mr Deeley

RESPONDENT: Ms Dervin

INDEPENDENT CHILDREN’S LAWYER: Mr Williams

FILE NUMBER: BRC 761 of 2012

DATE DELIVERED: 22 May 2013

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Kent J

HEARING DATE: 21 May 2013

REPRESENTATION

FOR THE APPLICANT: No appearance

SOLICITOR FOR THE RESPONDENT: DJ Allard & Associates

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Williams Lawyers

Orders

IT IS ORDERED THAT

1. All previous parenting orders be discharged.

Parental Responsibility

1. It is declared that the presumption of equal shared parental responsibility is rebutted in the best interests of the child E born … June 2002 (“the child”).

2. The Mother shall have sole parental responsibility for the child.

Live With and Communication

1. The child live with the Mother.

2. The child spend no time with the Father.

Miscellaneous

1. The Independent Children’s Lawyer be discharged.

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

FAMILY COURT OF AUSTRALIA AT

FILE NUMBER:

Mr Deeley

Applicant

And

Ms Dervin

Respondent

REASONS FOR JUDGMENT

1. By an Initiating Application filed in the Federal Magistrates Court (as the Federal Circuit Court then was) on 31 January 2012 Mr Deeley (“the Father”) sought parenting orders pursuant to Part VII of the Family Law Act 1975 (Cth) (“the Act”) with respect to his son E born in June 2002, (“the child”).

2. The child’s mother, Ms Dervin (incorrectly named “…” in the Father’s material) (“the Mother”) filed a Response to the Father’s Initiating Application on 5 April 2012. She filed an Amended Response on 7 March 2013.

3. On 11 April 2012 Federal Magistrate Demack (as Judge Demack then was) made interim Orders on the first return date of the Application. Her Honour ordered that the child live with the Mother and spend time with the Father as agreed between the parties in writing.

4. Her Honour also made Orders for the child to be independently represented in these proceedings and otherwise transferred the proceedings to this Court.

5. Pursuant to the Order for independent representation Mr Peter Williams of Williams Lawyers has acted as the Independent Children’s Lawyer in these proceedings within the meaning of s 68L of the Act.

Background

1. The Father is 49 years of age having been born in 1963. The Mother is 33 years of age having been born in 1980. The parents commenced cohabitation in 2000 and separated in 2003.

2. It is not in issue that the child was born of the relationship. As already noted, the child is currently aged 10 years but is about to turn 11 years of age having been born in June 2002.

3. The Mother married her current Husband, Mr B, in September 2010. There are two children of that marriage namely, C born in September 2009 and D born in April 2012.

4. Obviously enough, at the time of the parent’s final separation in 2003 the child was very young. He continued living with the Mother post-separation although spent time with the Father each alternate weekend from Friday afternoon until Monday morning. From about the year 2005 the child would spend time with the Father for approximately two one-week block periods each year.

5. Those historical care arrangements changed dramatically in the latter part of 2008 when events occurred leading to, in December 2008, the Father being charged with seven counts of indecent treatment of a child under the age of 16 years. The victim was the Mother’s daughter of a previous relationship, F. F was aged between about 10 years and 12 years over the period when these offences were committed.

6. In October 2010, the Father was found guilty on his own plea in respect of all seven counts of indecent treatment. He was sentenced to a term of imprisonment.

7. There is on the evidence before me a clear connection between F having been victimised by the Father and her own psychological and emotional wellbeing. I accept the Mother’s evidence that as a consequence of her victimisation, F, who is now 17 years of age, has suffered post-traumatic stress disorder. She has been prone to running away and from time to time has been suicidal. The Mother has reported that ever since F’s disclosures of the Father’s sexual abuse of her and the report of that abuse by F’s school counsellor in late 2008, F has been “downhill from that point”. It seems F took a long time before she would agree to see a counsellor. The Mother does not know the full details of what the Father did because F does not like talking about it. F has been suicidal and will make suicidal remarks. As noted, she is very reluctant to see anybody or to discuss what happened to her. At the time of interviews by Mr G, psychologist, for the purpose of his Family Report (affidavit filed 11 February 2013) the Mother was expressing concerns about F’s tendency to go out with men much older than her and including cohabiting with some of these partners. The Mother expressed to Mr G her belief that F was using drugs although noted that F denies this.  

8. It is clear from the report of Mr G, which records a concerning history of involvement by the Department of Communities (Child Safety) and police that there have been significant impacts upon the Mother in coping with events surrounding F’s abuse. More particularly, as expressed by Mr G, there have been significant concerns about the Mother’s mental wellbeing faced with the Father’s current Application.

9. At paragraph 9.2 of his report, Mr G records:

   9.2This is not a matter of simply considering risk of further offending. The mother has also expressed her concerns with respect to her own mental health and the mental health of her daughter, [F], should [the Father] be allowed to re-establish his relationship with [the child]. On the basis of her presentation to me and the information that I have reviewed, I believe that there is concern in that regard. [The Mother] describes symptoms consistent with Posttraumatic Stress Disorder that has arisen as a result of [the Father’s] offending and the emotional and other impacts upon her daughter, [F]. It does appear that there has been some re-emergence of symptomatology from the time of [the Father’s] current application. Indeed, there has been significant strain in the relationship between [the Mother] and her current husband, exemplified by the police reports of violence in [the Mother’s] household since that time. It is also apparent from those police reports that [the Mother] is inclined to react in a violent manner when she is under stress. For a more extensive review of her mental health, a psychiatric evaluation may be useful. However, I think there is already sufficient information to indicate that there is significant risk to [the Mother’s] mental health in the event that the father’s application is supported.

   9.3This begs the question as to any secondary negative impact upon [the Mother’s] ability to parent her children. Clearly, if there were (sic) risk of further stress in [the Mother’s] household that might result in further violence or instability on her part, there would be a likely secondary impact upon her parenting and upon [the child’s] (and her other children’s) emotional development.

   (emphasis added)

10. On 25 January 2013 Mr G, psychologist, as the single expert prepared a Family Report at the request of the Independent Children’s Lawyer. Mr G also prepared a Sexual Risk Assessment Report upon the Father also dated 25 January 2013. Both reports were filed with the affidavit of Mr G on 11 February 2013.

11. Shortly before the filing of that affidavit, on 7 February 2013, Registrar Stoneham made directions for the filing of material for the purpose of the trial of this Application and subject to compliance of those Orders the matter was listed to a callover in May 2013. The Father was represented by his then solicitor for the purpose of the directions and Orders made by Registrar Stoneham on 7 February 2013.

12. The Orders and directions made by Registrar Stoneham on 7 February 2013 included the listing of the matter for what is known as a “compliance” mention before the Registrar on 22 April 2013. It is to be noted that the compliance mention was listed for a date after the date upon which the parties were to file material including affidavits for trial.

13. On 25 March 2013 the Father’s solicitor filed a Notice of Ceasing to Act. Thus on 22 April 2013 when the compliance mention was held by Registrar Coutts the Father appeared in person by telephone. As at that date, the Father had not filed the material he had been directed to file by the Order of 7 February 2013. He was given an extension to file that material by no later than 4:00pm on 1 May 2013.

14. There is a notation to the Order of Registrar Coutts of 22 April 2013 that:

    The Father advised the court all trial material, to include an Amended Initiating Application, Affidavit of Evidence in Chief and Affidavit of his counsellor [Mr H] will be filed and served no later than 4:00pm on 1 May 2013.  

15. In the event, the Father did not file such material but in fact, on 29 April 2013, filed a Notice of Discontinuance of his Initiating Application filed on 31 January 2012.

16. As already noted, the only operative Order at that point for the Father to spend any time with the child was on terms “as agreed between the parties in writing”. Obviously as at the time of filing the Notice of Discontinuance the Father was well aware from the Mother’s Amended Response filed 7 March 2013 that the Mother was seeking an order that she have sole parental responsibility for the child; that the child live with her; and that the child spend no time with the Father.

17. The Father was also aware from the Orders made by Registrar Coutts on the dates referred to that the matter was to proceed to a callover on 6 May 2013.

18. At that callover, which the Father did not attend, the matter was set down for final hearing commencing at 9:00am on 21 May 2013 to be heard on an undefended basis. At that stage neither the solicitor for the Mother nor the Independent Children’s Lawyer were aware, apparently, that the Father had in fact filed a Notice of Discontinuance. It seems he had failed to serve that Notice upon those parties.

19. The Father has made no appearance at the trial and, as already noted, has filed no trial material. The only material he has filed since directions were made for the filing of material, or which has been filed on his behalf, is the Notice of Ceasing to Act filed by his solicitor as earlier referred to and his own Notice of Discontinuance which he filed himself. As already noted, the Father has been well aware at all material times that the Mother was seeking the orders set out in her Amended Response filed on 7 March 2013.

20. The Mother appeared at trial with her solicitor. The Independent Children’s Lawyer also appeared and supports the orders sought by the Mother on a final basis. Both the Mother and the Independent Children’s Lawyer seek that the matter be heard and determined on an undefended basis and both join in the making of orders as sought by the Mother outlined in her Amended Response as referred to.

Opportunity to be Heard

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

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

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

   (emphasis added)

3. I have set out above the procedural history of these proceedings to show that at all material times the Father has been aware of the orders sought by the Mother and has had ample opportunity to be heard with respect to those orders. He had the Mother’s Amended Response filed 7 March 2013 and the reports of Mr G as attached to his affidavit filed 11 February 2013.

4. Even though the Father did not comply with the Orders made by Registrar Stoneham on 7 February 2013 he obtained an extension of time for the filing of such material by the Order Registrar Coutts made on 22 April 2013. It is clear that in the event the Father has elected not to file material but has instead chosen to file a Notice of Discontinuance of his Application. The clear inference to be made is that the Father has elected not to participate further in these proceedings.

5. For all of these reasons I am satisfied that the Father has had the opportunity to be heard and I consider that it is in order to proceed to hear and determine the Mother’s application for parenting orders on an undefended basis.

6. I am fortified in that conclusion by the fact that the child’s interests in these proceedings are independently represented by an experienced Independent Children’s Lawyer who has diligently gathered relevant evidence including expert reports.

Statutory Framework

1. Part VII of the Family Law Act 1975 (Cth) (“the Act”) (ss 60A to 70Q) provides the statutory framework in which the Court exercises its power to make parenting orders.

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

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

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

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

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

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

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

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

5. Section 65D of the Act provides the source of the Court’s power to make a “parenting order”. This section expressly provides that this power is subject to, inter alia, s61DA of the Act. Section 61DA(1) requires the Court to apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. The presumption does not apply in circumstances of abuse or family violence of the kind referred to in subsection (2) and further, the presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility. (s61DA(4) of the Act).

6. If the Court makes an order providing that a child’s parents are to have equal shared parental responsibility for the child then it must go on to consider whether it is in the bests interests of the child and reasonably practicable for the child to spend equal time with each of the parents, and if it is, to consider that order and, if not, the court must consider an order for substantial and significant time with each of the parents.[1]

   [1] Section 65DAA.

7. In these proceedings, even when the Father’s Initiating Application was extant, there was no question that the child should live with the Mother. The only issues agitated by the Father by his Initiating Application was parental responsibility and him spending time and communicating with the child.

8. In the face of the Mother’s Amended Response the only parenting orders to which attention needs to be directed, having regard to best interests considerations, is the question of the Mother having sole parental responsibility and there being an order for no time or communication with the Father.

9. Against the background of the objects and principles in s 60B I therefore propose to consider the relevant s 60CC considerations having regard to the orders sought by the Mother. There is obvious overlap between many of these considerations and whilst I will not specifically address each of them I have had regard to all of them in what follows. Some of the considerations have no relevance or application here.

Primary Considerations – s 60CC(2)

1. In the unusual circumstances of this case it cannot be readily concluded that the child would benefit from having a meaningful relationship with the Father. Those circumstances, which will be further discussed, include the circumstance that the Father did not participate in the trial and was thus unable to be tested to enable the Court to be better informed about and form or conclude views and findings about whether or not the child needs to be protected in any relevant sense from being subjected to or exposed to abuse by the Father.

2. The circumstances include that at this point, the child has not been burdened with the knowledge that the Father sexually abused his sister, F. All of the evidence before me points to the feature that notwithstanding F’s problems and difficulties, the child has a good relationship with F and clearly loves her. I accept the Mother’s evidence that she is striving for the position that the child is able to negotiate his teenage years without the knowledge of this awful truth about his biological father.

3. Likewise, it would seem that F is conscious that the child benefits from not being informed of this information and extended family members on the Mother’s side have also acceded to the Mother’s position that the child not be informed.

4. It is now the position that the child has not spent regular time or had regular communication with the Father since the allegations surfaced in the later part of 2008, now approaching five years ago.

5. Whilst it may be that sooner or later the child may ask about the Father and why he does not see his biological father or otherwise learn about the Father’s criminal conduct, it would seem that if the Father now commenced spending time even in a supervised setting (or perhaps particularly in a supervised setting) with the child, the practical reality is that it would probably be unavoidable for the child to learn about the Father’s conduct. It is a complete unknown as to how the child might react to that.

1. Moreover, the significant focus of these proceedings is the reaction of each of F and the Mother in the event that the child now commenced spending time or communicating with the Father pursuant to orders made. It is clear on the evidence before me that the institution of the present proceedings by the Father has had an adverse impact upon the emotional and psychological wellbeing of the Mother and also probably F. I find that the Mother’s parenting capacity has been compromised by her having to contemplate the orders that were sought by the Father on this Application.

2. In all the circumstances it cannot be concluded that it is more probable than not that it would now be possible to establish a meaningful relationship between the child and the Father or that such a relationship could be maintained.

3. Moreover, without having had the opportunity to observe the Father at trial the Court cannot readily conclude that there are positive benefits to the child of having a meaningful relationship with the Father even if one could be established. The child was only about six years of age when he last spent regular time with the Father. He is now almost 11 years of age.

4. Given the Father’s criminal history, and the nature of that criminal history, he does not present as a positive role model for the child.

5. In terms of any risk posed by the Father to the child, the second of the primary considerations, the expert opinion of Mr G is that the risk of the Father committing an offence against a male child in the future is low and that the risk of him committing an offence against his biological son is particularly low.

6. The difficulty for the Court in accepting Mr G’s opinions is that they are based upon history provided by the Father to Mr G which, because of the Father’s non-participation in the trial, cannot be verified or tested. In this respect I note that Mr G records in his report:      

   8.3Much depends on whether [the Father’s] genuineness with respect to his offending behaviour is accepted, or not. I can only rely on his presentation at interview in this regard and I have noted (as per the Family Report) that his previous partner, [the Mother], considers that he is quite capable of manipulating others through lies. I really cannot comment further except to say that he appeared a genuine person to me. I note that he impressed [Mr H] similarly. If that is accepted, then [the Father] appears to have addressed all of the risk factors surrounding his offending behaviour.

7. Obviously, the Father’s non-participation in these proceedings prevents the Court from having verification of the background information the Father supplied to Mr G and prevents the Court from making an assessment of the Father with the benefit of him being tested in cross-examination.

8. There is evidence before me, particularly from the Mother including a letter from the Father which she annexes to her material, giving cause for concern about whether or not the Father is genuine in his acceptance of his wrongdoing or at least has clear insight and fully understands the full effect of his wrongdoing upon others, particularly F and the Mother. Even within Mr G’s report there is a similar theme of a lack of understanding at least by the Father.

9. Given the nature of the Father’s criminal behaviour, unless and until these aspects and issues can be fully ventilated I do not see how a Court could conclude otherwise but that there is a need to protect the child.

Child’s views – s 60CC(3)(a)

1. As already noted the child has not been burdened with the knowledge of the Father’s criminal conduct and thus is unaware that his half sibling, F, has been victimised by that conduct.

2. Mr G interviewed the child for the purpose of his Family Report. Mr G observes that the child was willingly interviewed and spoke of progressing well at school in year five. He spoke favourably of having lots of friends and enjoying aspects of his schooling. He referred to Mr B as “my Dad” and spoke favourably of activities shared with Mr B.

3. Notably Mr G records:

   6.3He spoke of who lives at his home and said that he loves [F] “because she is my sister”. He explained that [F] has not lived at home for quite a while but she visits sometimes.

4. The child told Mr G that he gets on “really well” with members of his family; that he felt happy most of the time; and that he is not a child who worries much at all. Mr G assessed him as an articulate and happy child.

5. Relevantly, Mr G records in his report:

   6.7When asked about his memories of his biological father, [the child] said, “There was a [the Father’s first name] or someone” but he did not really remember him. When asked if he knew anything about him, [the child] said that he thought he still lived at the Gold Coast. When asked if he ever thinks about or wants to see him, [the child] responded, “Not really”. Asked again later in the interview, [the child] looked puzzled and then said, “No”.

   6.8[The child] said that he likes [Mr B] but he could not remember if he liked [the Father’s first name]. He said that he does not think about him because he does not really know him. He also said that nobody really talks about [the Father’s first name] at home.

6. Clearly enough the child did not express any views to the expert family report writer to the effect that he had any wish to see his biological father or any desire to spend time with him. Whilst it would seem that the child is generally aware that he has a biological father, he clearly does not have any clear recollection of the Father.

7. On the views expressed by the child to Mr G, he is clearly happy in his current circumstances and has good relationships with all of the members of the Mother’s family including his maternal grandparents and indeed including Mr B’s parents. The child is obviously fond of his younger siblings, C and D. He clearly loves F.

8. Given Mr G’s assessment of the child as an articulate and happy child and given also his chronological age there is no reason not to place some significant weight upon the child’s views. Relevantly for present purposes he is not expressing any views to the effect that he wishes to see the Father.

9. Moreover, it bears repeating that the child knows nothing about the Father’s criminal conduct towards F. Given that he does not express any knowledge about the Father or any particular memory of the Father whilst he clearly loves F, it would seem a reasonable inference that if the child was aware of the Father’s criminal conduct he may well form adverse views about the Father and may well be adamantly opposed to seeing or spending time with the Father.

Nature of the child’s relationships – s 60CC(3)(b)

1. On all the evidence the child has a close and loving relationship with the Mother; the Mother’s current husband Mr B whom, as noted, the child refers to as “my Dad”; his siblings; and extended members of the maternal family as well as Mr B’s parents whom the child effectively regards as his own grandparents and who likewise appear to regard the child as if he were their grandson.

2. As already noted the child currently has no relationship with the Father and does not appear to remember the Father.

Willingness and ability to facilitate child’s relationships – s 60CC(3)(c)

1. It is clear that the Father’s criminal conduct has had a profound effect upon F and the Mother and in turn upon the cessation of any relationship with the child.

2. The sexual abuse upon F was perpetrated upon her when she was only between the ages of 10 years and 12 years. Mr G’s report records the profound effects upon F’s development and her progression through adolescence. In turn, that has had a profound effect upon the Mother.

3. Understandably, the Mother essentially regards the Father as having grossly breached her trust in his manner of dealing with F. It is obvious from the contents of Mr G’s report detailing the records held by the Department and the Queensland Police Service that the Mother has had great difficulty coping with the stress caused by the Father’s conduct heightened as it has been by the Father bringing this Application.

4. I find that the Mother’s emotional and psychological wellbeing has been compromised by the Father’s conduct and in turn, the consequence of that is that she has no willingness or ability, understandably, to facilitate a relationship between the child and the Father.

5. I have already made observations about the Father’s apparent lack of insight or total acknowledgement of the consequences of his conduct both for F and the Mother. I have referred to the correspondence he forwarded to the Mother as annexed to her material, which seemed to be dismissive of any legitimate concerns the Mother could still have and indeed was threatening and bullying in part. I would have no confidence that the Father would speak positively of the Mother to the child given the opportunity.

Likely effect of any changes – s 60CC(3)(d)

1. I have already referred to the prospect of the child finding out about the Father’s conduct if he now commenced having regular time and communication with the Father. Whilst it is necessarily speculative, it would seem by inference more likely than not that the child would react adversely and perhaps very adversely to the Father if he learnt about the Father’s conduct against the background of there being any orders for time and communication with the Father.

2. More fundamentally, there are necessarily concerns about the impact upon F and the Mother if the Father commenced spending regular ordered time and communication with the child. I accept Mr G’s opinions to the effect that the emotional and psychological wellbeing of both F and the Mother would be compromised. I accept that the Mother’s parenting capacity would be compromised. Plainly, that would be completely contrary to the child’s best interests given the extent to which his stability of circumstances and happiness is sourced to the Mother and her wellbeing.  

The capacity of each parent to provide for the child’s needs – s 60CC(3)(f)

1. Based upon particularly the expert report of Mr G it would seem there is ample capacity of the Mother to provide for the child’s needs subject only to the conduct Mr G details when the Mother is under stress, including the stress of these proceedings.

2. It would seem that the child is progressing well at school; has solid peer relationships and good relationships with family members. The Mother is in receipt of a disability pension as a result of childhood polio and Mr B is currently not working because of the perceived need to support the Mother in these proceedings. It seems that their combined resources provide for the child’s physical needs (and the needs of the other children) particularly when Mr B is working.

3. The Father has provided some child support for the child consisting of, as I understand it, $100 per week when he is working and about $10 per week when he is not.

4. The Mother’s capacity to provide for the child’s physical, intellectual and emotional needs, in short, all of her parenting capacity, would be enhanced by the closure of these proceedings without orders for regular time and communication between the child and the Father.

5. Because of the Father’s lack of time and communication with the child for almost five years now his capacities in these respects are essentially untested. Fundamentally, I am concerned that he does not display the insight into the consequences of his behaviour as would readily satisfy a conclusion to the effect that he can cater for the child’s emotional and intellectual needs if the child learns about the Father’s criminal conduct.

6. In all the circumstances, I am therefore not satisfied that the Father can adequately provide for the child’s physical, emotional and intellectual needs if there were orders for regular time and communication given the likelihood that, in practical terms, the child would then learn about the Father’s conduct and draw his own conclusions about the effect of that conduct upon the sister whom he loves. I do not see a basis for concluding that the Father would cope with the likely response that would provoke in the child.

Attitude to the child and to responsibilities of parenthood – s 60CC(3)(i)

1. This consideration has already largely been dealt with in the earlier discussion and in what follows.

2. It is clear enough that the Father stood in the position of parent to F at the time of committing the offences. Whilst the parties may have finally separated it is clear that they continued to engage in activities together and the Father grossly abused his position of trust with the Mother and F by perpetrating acts of sexual abuse upon F.

3. Notwithstanding her unfortunate behaviours from time to time as earlier referred to, the Mother has demonstrated a positive attitude to her responsibilities as a parent given all the challenges she has faced, as discussed.

Family violence – s 60CC(3)(j)

1. Plainly enough the criminal conduct of the Father constitutes family violence within the meaning of the Act.

2. I accept the Mother’s unchallenged evidence that the Father was prone to bullying and control of her such that it would constitute family violence within the meaning of the Act.

Order least likely to lead to further proceedings – s 60CC(3)(l)

1. In my view orders for the child to have time and communicate with the Father on a regular basis, without him knowing about the Father’s criminal conduct affecting F, would be doomed to fail because of the likelihood of the child learning about that conduct and the probable consequences of that for him in terms of his reaction.

2. The Father has elected to discontinue his Application knowing that the Mother was seeking orders for sole parental responsibility and an order for no time with the Father. It does not seem likely that if orders in those terms are made the Father would agitate in the future otherwise given that he had the opportunity to proceed with his current Application had he chosen to so do.

3. I find that the orders sought by the Mother and the Independent Children’s Lawyer thus have the best prospect of bringing about finality in terms of there being any further proceedings concerning the child.

Participation in decisions – s 60CC(4)

1. The Father’s participation in the child’s life and decisions concerning him was curtailed by the Father’s conduct and being charged with the criminal offences, his conviction in respect of those offences and his imprisonment. All of that occurred over a period spanning some years.

2. Essentially since 2008, decision making for the child has, as a result, rested with the Mother.

3. On her evidence, which I accept, the Father did not seek to actively participate in the child’s life over the relevant period referred to. In that respect, he can be said to have failed to seek to participate in such decisions.

Balancing s 60CC considerations

1. Other specific considerations set out in s 60CC are absorbed within those specifically discussed and outlined above.

2. I find that the Mother’s parenting capacity would be compromised by orders for time and communication between the child and the Father and that would be contrary to the child’s best interests.

3. I find that it would be illusory to think that the child would remain unaware of the Father’s criminal conduct if orders for regular time and communication were now made.

4. I find that if the child were to now learn about the Father’s criminal conduct, as would seem more likely than not if orders for regular time and communication were made, it is probable that the child would react adversely to the Father and out of loyalty to both the Mother and F would not be amenable to such orders.

5. It is in the child’s best interests that the consequences for the Mother and for F of the Father’s criminal conduct are minimised as best as they can be. In the context of these proceedings that means that it is in the child’s best interests that there be no orders for time and communication between the child and the Father.

Parental Responsibility

1. I am satisfied having regard to my findings concerning family violence that the presumption as to equal shared parental responsibility is rebutted and in any event, it would be contrary to the child’s best interests for his parents to have equal shared parental responsibility.

2. I find that there is no realistic prospect of these parents being able to consult each other with respect to major long-term decisions concerning the child’s welfare.

3. I am satisfied that it is in the child’s best interests that the Mother have sole parental responsibility.

4. I am therefore satisfied that the orders sought by the Mother meet the best interests of the child. I am fortified in that conclusion by the feature that the Independent Children’s Lawyer appointed to independently represent the child’s interests in these proceedings fully supports the making of orders as sought by the Mother. 

5. For these reasons I make the orders set out at the commencement.

I certify that the preceding ninety-nine (99) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 22 May 2013.

Associate: 

Date:  22 May 2013