Desmond and Allcard and Ors

FAMILY COURT OF AUSTRALIA

DESMOND & ALLCARD AND ORS

[2012] FamCA 813

FAMILY LAW – CHILDREN – Best interests of the child – where the mother sought sole parental responsibility that the child live with and child spends time with the paternal aunt – where the father sought orders that the child live with him after six weeks with the paternal aunt and that the child have no contact with the mother for an initial period of three months - where orders provide for the child to live with the mother – where orders provide that the child spends time with the paternal aunt – where the child spends no time with the father or paternal grandmother - where the father was convicted of indecently assaulting the child’s step-sister - where the father had served a minimum gaol term of 18 months for his custodial sentence of three years – where the child was found to be at risk in both households - where the expert only marginally favoured the proposal of the mother over the father – where the child was at risk in the mother’s household as she was not emotionally available for the child, as she had not properly dealt with the sexual abuse of her daughter – where the expert said it was necessary for the mother to seek specialist therapeutic intervention from a sexual assault worker as her previous psychological interventions were inadequate in addressing specific issues associated with sexual abuse - where the child was at risk of becoming alienated in his local community if he was to be placed into the home of his father - where the child did not want to have anything to do with his father and where he was protective of his step-sister and mother – where the child’s wishes were given significant weight - where orders were made to allow the child to have the choice of whether to make contact with his father before reaching 18 years of age- where there was a benefit to the child of continuing his relationship with the paternal aunt - where there were previous final consent orders providing for a relationship to be re-established between the father and child, those orders providing that the child first see the paternal grandmother and paternal aunt – where the mother failed to abide by earlier orders providing for contact with the father and paternal family– where the mother did not want the child having any contact with the paternal grandmother – where the expert considered mother’s parenting style somewhat lax with her daughter in early adolescence.

Family Law Act 1975 (Cth) ss 60CC, 62B and 65DA,

APPLICANT:

Ms Desmond

FIRST RESPONDENT:

Mr Allcard

SECOND RESPONDENT:

Ms M Allcard

THIRD RESPONDENT:

Ms D Allcard

FILE NUMBER:

(P)NCC

793

2008

DATE DELIVERED:

21 September 2012

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Newcastle

JUDGMENT OF:

Cleary J

HEARING DATES:

29, 30 & 31 August 2012

REPRESENTATION

APPLICANT:

In person

SOLICITOR FOR THE FIRST, SECOND & THIRD RESPONDENTS:

Hannaway Lawyers
Mr D Hannaway

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms V Carty

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms J Adams

Orders

That the mother shall have sole parental responsibility for the child B born 17 January 2001 (“the child”).
That the child shall live with the mother.
That the child shall spend time with his aunt Ms M Allcard at times and dates agreed between the mother and the aunt and failing agreement otherwise not less than:
3.1each third Sunday of the calendar month from 12.00 noon Sunday for a period of five hours extending on four of those occasions from 10.00 am Saturday until 5.00 pm Sunday, the first such period to commence in October 2012.
In the event that the child expresses a wish to his mother or paternal aunt to contact and/or spend time with and/or communicate with his father and/or his paternal grandmother then the mother and paternal aunt shall consult with each other and shall arrange for the child to communicate and/or spend time in accordance with his wishes.
The mother is restrained from enrolling the child in any school other than T Primary School until the child completes his primary school education.
This order operates as an authority to any school in which the child is enrolled to provide to the father at his written request and at his expense, if any, a copy of each of the child’s school reports.
The mother shall arrange for the child to meet with the Independent Children’s Lawyer at a mutually convenient time for the Independent Children’s Lawyer to take the following steps:
7.1to generally explain these orders to the child;
7.2to explain to the child that if at any time before the age of 18 years the child decides that he wants to contact/spend time with his father and/or his paternal grandmother, then that can happen by arrangement with his paternal aunt in consultation with his mother NOTING that it is entirely up to the decision of the child himself whether such meeting or communication takes place.
Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Desmond & Allcard 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 NEWCASTLE

FILE NUMBER: (P)NCC793 of 2008

Ms Desmond

Applicant

And

Mr Allcard

First Respondent

And

Ms M Allcard

Second Respondent

And

Ms D Allcard

Third Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

This is a parenting dispute over the child, B aged 11 years seven months (“the child”). The applicant is the mother Ms Desmond, aged 39 years (“the mother”). The first respondent is the father, Mr Allcard aged 46 years (“the father”). The second respondent is Ms D Allcard, the paternal grandmother, aged 75 years (“the paternal grandmother”). The third respondent is the paternal aunt, Ms M Allcard, aged 47 years (“the paternal aunt”).
The mother represented herself. The three respondents were represented by the same solicitor. There was an Independent Children’s Lawyer. The matter proceeded over three days.

Short history of the parties

The parents met in 1996. The father was a single man of 30 with no children of his own. The mother had two young daughters, M then aged six years, and J, then aged three. Neither of the girls spent time with their respective fathers, for different reasons.
The father of M abandoned the mother during her pregnancy. She was 16 at the time. After two years the mother met and later married J’s father, Mr L. They lived together for four years, separating shortly before the birth of J in 1993. The mother says Mr L was an alcoholic. He made contact with his daughter J five years ago and has established a relationship with her.
Accordingly, when the two parents in these proceedings began living together in 1996, the respondent became the only father either of them knew. J always called him “Dad”. M never did.
In January 2001 the subject child B was born. The mother says that thereafter the father began to drink at the local hotel after work every day. Other problems developed. However, the father considered he had no authority to discipline the two girls.
In February 2007 J was sexually assaulted by a school friend’s older brother. J’s behaviour rapidly deteriorated thereafter.
In April 2007 the mother ended the relationship with the father and moved with J and the child to separate premises in Town Q, leaving the father in the family home. M by that time had moved out of the family to live with her boy friend.
The mother was then in full support of the father spending regular time with the child. So arrangements were made consensually at the time of their separation.

Father’s sexual assault of the step-daughter J

Then one night shortly after their separation the child was spending a night with his father. That night the father received a phone call from J, asking if she and a friend could stay that night at the family home with the father. Later that night after they had come home the father sexually abused J.
The matter was reported to police. The father was charged and pleaded guilty to one charge of aggravated indecent assault. He was found not guilty of a second charge of sexual assault by digital penetration. The father was sentenced to three years gaol. He served the minimum period of 18 months. He was released on 15 October 2008.
By arrangement between the mother and paternal family, the child spent some time with his paternal grandmother and aunt whilst his father was in goal. This ceased after a few months, the mother perceiving that the paternal grandmother was critical of J and defensive of the father.
By the time of these proceedings the child had spent very little time with his father for more than five years.

History of litigation

On 3 December 2008 the mother made her first application seeking sole parental responsibility for the child, with no communication other than in writing between the child and his father. Over the following almost four years, there has been litigation over arrangements for the child.
On 17 February 2009 orders were made for the child to live with his mother. An Independent Children’s Lawyer was appointed for the child and J. Three months later the mother moved from Town Q to Queensland. The father sought a location order.
On 8 July 2009 the mother filed an affidavit as directed by a Federal Magistrate explaining her reasons for moving to Queensland. Amongst those reasons, repeated in her oral evidence in these proceedings, she said this:[1]
I was greatly concerned about [the child]’s father and what harm he might do to me and/or [the child]. I became greatly concerned that he might harm me and/or [the child]. I based those concerns on his behaviour when he sexually assaulted my daughter [J]. I found that incident completely inexplicable and without justification. The sexual assault on [J] had caused her significant harm. I formed the view that if [the child]’s father could sexually assault and harm [J] then it was well within his capacity to harm either myself of [the child].
I became extremely anxious and frightened. I had a number of anxiety attacks. During those anxiety attacks I felt like I was going to have a heart attack and I began hyperventilating. I also had great difficulty sleeping. I lay awake for long periods of time worrying about what [the child]’s father might do to me and/or [the child].
I sought treatment from a doctor and psychologist in relation to my anxiety and lack of sleep. I was prescribed medication which I took.
Notwithstanding that medication I continued to suffer from anxiety and sleeplessness. I felt that I could not longer “handle it”.
My difficulties coping at that time were also exacerbated by the fact that [J] has experienced a number of problems since she was assaulted by [the fahter]. Since being assaulted she has been promiscuous, has left school and commenced taking drugs. I have tried to support [J] however once she became aware that [the child]’s father knew where we were living she ceased living with me. I was aware that [J] was worried about [the father] either attacking her or doing something to me and/or [the child].
I felt I had to get away from [Town Q]. As such, I left on
[1] Affidavit of the mother sworn 08/07/2009, pars 9-14
2 May 2009.
On 3 September 2009 interim orders were made granting sole parental responsibility to the mother and restraining communication between the father and paternal grandmother with the child. The matter was transferred to the Family Court and a single expert, Ms S, was appointed. The report by

Ms S was released,
On 23 February 2010 further procedural orders were made. Three months later the mother without prior notice, moved to Adelaide.
On 11 June 2010 there was a joint conference of experts (Ms S and

Mr P). They concluded that the father did not pose an unacceptable risk of harm to the child.
On 30 June 2010 final orders were made by consent in relation to the child the child:
·     Sole parental responsibility to the mother.
·     The child to reside with his mother.
·     The Mother to return from Adelaide to live with the child in Town Q
·     The child to spend time with his paternal grandmother and paternal aunt.
·     The child to spend supervised time with the father commencing December 2010 gradually working up to unsupervised time after April 2012, with a fresh application to be made if the parties could not agree on further arrangements.
The mother did return to Town Q. However, time between the child and the paternal family did not progress as anticipated.
On 8 December 2010 the paternal grandmother and paternal aunt filed a Contravention application. Further family report interviews were conducted.
On 8 April 2011 Contraventions were established against the mother on five counts without penalty. The orders made that day also suspended any further contact between the child and the paternal grandmother.
On 14 July 2011 the mother file a fresh Initiating Application in this Court. The final orders sought included:
·       Leave to relocate the child’s residence to Adelaide or Brisbane.
·       Time between the child and his paternal aunt four times per year.
·       Time between the child and his father and paternal grandmother in accordance with the child’s wishes, with the paternal aunt to be “substantially present” during such periods.
In the same application interim orders were sought suspending time between the child and his father and paternal grandmother.
On 14 May 2012 the father filed an Amended Response seeking:
·       Sole parental responsibility to the father.
·       Residence with the father after an initial period of six weeks with the paternal aunt.
·       Time to be spend with the mother after a three month period each weekend (for three months), then each alternate weekend and for holiday periods.
·       Other orders relating to specific issues.
By the time the matter was heard in August 2012, the mother had become self-representing. Just prior to the trial she sought in her minute of order filed

11 July 2012 :
·       Sole parental responsibility and residence with the mother.
·       No contact with the father until the child wished to have contact.
·       Orders restraining the paternal family from approaching the child, the mother and her two daughters.
·       Time between the child and his paternal aunt on alternate weekends.
·       Change of surname for the child from Allcard to Desmond.

Issues for determination

All issues involving the future parenting arrangements for the child were in dispute.
a)The allocation of parental responsibility;
b)Residence;
c)Time to be spent with each parent and other family members;
d)Specific issues relating to communication between the parents and to their personal conduct.
e)Change of surname for the child. No evidence was lead in relation to this issue and I regard it as not having been pursued.

Evidence of the mother, Ms Desmond

The mother relied on the following documents:
(i) Minute of Orders filed 11 July 2012;
(ii) Affidavit of the mother sworn 15 August 2012.
The mother was cross-examined over the course of two days on the contents of that affidavit and four prior affidavits[2]. Despite her Minute of Order, it became clear that the mother was willing to commit herself to the child remaining at T Primary school until the end of 2013. All parties agreed that it would be in the best interests of the child to remain at that school. An order has been made accordingly.
[2] Affidavits of the mother sworn 26/11/2008; 08/07/2009; 23/06/2010 and 12/07/2011
Although final orders had been made by consent in mid 2010, the mother asserted she had not wanted those orders. She asserted that she was advised she would “lose” the child unless she came back from South Australia to live in Town Q. In her oral testimony she provided: “[If she and [the child] had been] left alone we wouldn’t have come back.” In fact it became quite clear that the mother had been vehemently opposed to the child spending any time with his father since the date of his sexual abuse of J in April 2007. She regards the father as having destroyed her life and wrecked the life of her younger daughter, who now has two very young children and is in a frail psychological state. The mother agreed that she resented being brought back from South Australia by the consent orders of June 2010, but she said “she would have signed anything” rather than handing her son over to his father.
The mother was criticised for many changes of residence and the disruptive effect on the child. It is certainly the case that the mother left the Town Q area in 2008 when the father was first released from prison, to go to Queensland and live with her daughters and she again left New South Wales early in 2010, to move to South Australia, both to pursue a relationship of her own and because her daughter at that time was living in Adelaide and due to give birth to her first child. Being brought back from those two moves meant that the mother moved around between family members and friends creating a sense of impermanence for the child and undoubtedly adding to stress in the family. However, I accept that the mother strongly wished to move away from Town Q and remain in close proximity to as many members of her immediate family as she could
The mother was unable to remain with her parents as she did when she first came back from South Australia. I accept the evidence of the mother that her father found the situation of his grand-daughter having been molested by the father as intolerable and incomprehensible.
The mother described her father as being unable to accept the idea that he should not freely express his opinion of the father in strong terms, whether or not the child was present. In my view, it is to the mother’s credit that she removed herself and the child from her parent’s home to protect him from his grandfather’s views. The mother spoke of estrangement from both her parents now and attributed this mainly to her father’s distress: “Dad can’t get over what [the father] did and it’s my son, it’s not his fault”.
The mother described herself as having a good close relationship with her daughters, neither of whom wanted to live in the Town Q area. She referred on more than one occasion to breakdowns that her daughter J had experienced and also episodes where J would “go off.” She refers to J at times as experiencing very low, angry, volatile moods, where she blamed her mother for having introduced the father into her life. The mother was not critical of her daughter over this conduct. Indeed, I am left with the impression that the mother blames herself in that exact way. However, these episodes have also at times taken place in front of the child, who is quite aware of what his father did to his sister. He is protective of her, angry with his father and confused and hurt by the turmoil in his family over the last five years.
Unsurprisingly in the circumstances, the arrangements for the child to spend supervised time with his father and paternal family broke down. The mother became furiously angry with the paternal grandmother, whom she agreed to calling “evil” in previous contravention proceedings. The mother believes that the paternal grandmother made reference to J, “wearing bikinis around [the father]” as if she [J] deserved it [the assault]. The mother described her feelings about the paternal grandmother as:
Worse than dead is how I feel. I don’t actually loathe and detest, don’t wake up hating, they are worse than dead to me.

Objectively this is an extreme reaction to the comment, even if it were made in those exact terms. However, I accept that in her present high level of distress, those comments do describe the mother’s feelings towards both the paternal grandmother and the father.
In relation to the child’s paternal aunt, the mother was considerably more positive. She agreed that the child enjoyed his time with his aunt Ms M Allcard and that although he was getting a bit older and enjoying time with his friends, he also enjoys the periods of time he spends with his aunt.
Following on from consent orders made on 14 October 2011, arrangements were made for the child and the father to be seen by Mr C, a psychologist on the Mid North Coast of New South Wales for the purposes of re-establishing the relationship between the child and his father.
After the father and the child had both had an opportunity to attend upon

Mr C separately during December 2011, there was a meeting arranged for the 5 January 2012 where they would both meet in the presence of

Mr C.
The child had been brought to the appointment with a friend of the mother’s and the child was reported by Mr C as not wanting to come in. Mr C used his best efforts to affect the meeting. The father, who had invested considerable effort in this process, was to use his own words, bitterly disappointed.
The mother’s evidence about the event was that she had been told by

Mr C that she may be making the child nervous and agitated about the prospect of seeing his father, so the mother arranged for a friend Ms A to take the child to the appointment, so that her feelings “wouldn’t rub off on him.” The mother said that she had been advised by Mr C that she was probably making the child more anxious. Unfortunately, the attempt ended in failure, with the child distressed in the car park talking to Mr C and the mother’s friend angry and upset about the child’s distress. Understandably Mr C felt that he had reached the limit of what he could do in terms of therapeutic counselling. Mr C’s notes were tendered into evidence:[3]
[The mother] did not attend the session with [the child], rather she sent her friend [Ms A]. …. [Ms A] at no time encouraged [the child] to attend and was impatient to leave stating that she would not force him to attend. I feel curious that [the child]’s mother did not attend with him to ease his stress. This is the second time [the mother] sent [Ms A] instead of coming herself.
[3] Exhibit ‘F1’ blue tag 5
Mr C was not called to give evidence. There is more than one explanation for these events. One is that the mother was wrong in asserting that Mr C told her to send the child in the company of a friend of hers, but that she had interpreted Mr C’s statements to her about her own anxiety affecting the child as a suggestion to have someone else present. Another explanation is that the mother did not wish to be blamed for the child’s opposition. In any event it was a distressing incident for the child.
I accept the evidence of the mother that she was trying to abide by the rules and that she personally did not want to have to force the child to go places, in particular to that first re-engagement with his father. The extent to which the mother was hostile towards the father was tested in cross-examination. Her answers were that she felt no trust whatsoever in the father:
Two days after I leave him he has [the child] and my daughter in his care and that happens to my daughter.
There was this exchange:
Question: Do you fear that [the father] would sexually abuse [the child]?
Answer: I wouldn’t put anything past him.
And later:
I want my kids to be safe. I don’t want to be one of them mothers that say ‘I told you so’.
The mother was especially dismissive of reports which assessed the father as a low risk to the child, including reports by Mr P, the Family Consultant and Ms R, a Family Consultant who also saw the family on two occasions:
Low risk is nothing to me. I want no risk. He [the father] could do anything.
I am satisfied that the mother continues to be horrified by the assault on her daughter and to feel nothing other than mistrust and dislike for the father on that account.
The mother was cross-examined about her parenting style with her two daughters. There was implicit criticism that they were allowed to drink alcohol and have boyfriends at a young age such as 15. The mother indicated that J’s abuse of alcohol had commenced after the assault on her by the father, although she knew that both girls went to parties where there was drinking. The mother went on to describe her daughter J having insisted on sleeping with her for a year after the assault, that she had needed to put keys on the manhole in the house to reassure her, and that J had told her that she used alcohol to “numb out”.
I accept that the mother has had enormous difficulty managing her daughter J’s behaviour over the last five years and that the distress in the household and disruptions in the household will have had their impact on the child. One of those consequences is that the child has become protective of his mother in relation to his sister J, and reassures his mother that it is not her fault that J is so sad, but rather it is his father’s fault.
The mother was cross-examined about the report by Mr P, in particular, the second report when Mr P observed the father and the child together:[4]
[The father] was initially distressed when he saw [the child], hugging him and telling him how much he has missed him with [the child] reciprocating his father’s expressed affection.
During observations the father went on to be warm and engaging with the child asking appropriate questions about his schooling and other social activities. The child is stated to have told Mr P that he was feeling good about the meeting and told his father that he had missed him.
[4] Report of Mr P dated 29/07/2009 at par 33
At the time of that report the child was eight and a half years old. I accept the evidence of Mr P of the observation. The inevitable consequence is the conclusion that the child’s attitude to his father has become much more negative than it was at that time. In my view, part of the reason for this is that as the child has got older he has come to understand what has happened to his family and in particular, exactly what happened to his sister, she having discussed events with him personally, probably on several occasions. He was initially shielded from that information and from the fact that his father was in gaol. No doubt some of his antipathy is the result of the mother’s feelings about the father, but I formed the view that to some extent it was the child’s own reaction related to his love and affection for his sister and his protective feelings towards his mother.
The mother annexed to her affidavit a note written by the child. The mother denied having assisted the child to write the letter. She said she had found it in his bedroom. However, the circumstances are that the child knew that his mother was preparing court papers for a further hearing about his relationship with his father and that the child wrote the note to in some way assist his mother.

Counselling

The evidence of the mother was that she was having no further counselling and that counsellors had all told her the same thing, “that if something had happened to their child they probably wouldn’t change” and that they felt some sympathy for her aversion to the father.
The evidence of Mr P was very strong in relation to the need for the mother to engage with counselling of a particular kind, that is, with a sexual assault worker who had experience dealing with the parents of children who had been sexually assaulted. Mr P’s view was that the mother had been talking to the wrong people and needed to learn a way to lower her own levels of distress. A way to live with the assault on her daughter not to relive it every day.
It seemed to me that this was new information to the mother, or that if she had heard it before it had not previously registered as important. There is no order compelling the mother to undertake such counselling, but the benefit to the mother of engaging in such therapeutic intervention appears obvious, having observed the mother in the witness box.
The mother was asked whether the child should be able to make up his own mind about seeing his father. She thought not, but that if he did really want to see his father she would allow it to happen in a safe way. The mother went on to say that when the child was an adult he could go and see his father if that is what he decided to do. Given that it was the application of the mother in July 2011 that the child should spend time with his father and paternal grandmother in accordance with his own wishes, I accept that the mother is willing to facilitate time for the child if he wants it. I also accept that she believes that he does not want to spend time with his father. I am unable to be satisfied that that is the case.
Unfortunately, in May 2012, the child learned that an application had been made by his father and the paternal family for residence. He began to be reluctant to spend time with his aunt Ms M Allcard. There is compelling evidence that the child had a very close and easy relationship with his grandmother and aunt when his parents still lived together. They lived next door to each other. Sometimes his grandmother and sometimes his aunt looked after him. I consider that it is likely that the child had his own emotional reaction, but was also affected by his mother’s reaction when the residence application was made. I do not consider that his reluctance at least on some occasions, to continue spending time with the paternal aunt, was any reflection on the genuine enjoyment and pleasure that the child feels in his relationship with his aunt.
The mother gave evidence that she was taking prescribed medication for anxiety and was now taking the advice of a psychiatrist about weaning herself off the effects of the medication. She also agreed that she had seen a variety of doctors and counsellors and did not want to see any more of them. She did see Ms F on eight or nine occasions, who suggested that she might be suffering from Post Traumatic Stress Disorder which would account for her poor memory.
The mother was taken in some detail to the number of places she had lived or stayed since separation from the father. However, to the extent that it is made, I reject the submission that the mother was indifferent to providing stable accommodation for the child. Rather I take the view that given the stability of the family in Ms C until separation in 2007, the number of changes relate directly to the conflict between the parties and the various orders which were made from time to time, which caused the mother to move.
There was some disturbing evidence about the child himself. The mother said she drove him to and from school each day, partly because the bus trip was a very long meandering one, but also because the child liked his mother to be with him. She said that in the event that she was late the child became very disturbed. The mother is now renting a residence where she has been for about two years. She has entered a new relationship with Mr N. Mr N did not give evidence.
I accept that the outcome of these proceedings will determine whether the relationship between the mother and Mr N moves to the stage of them living permanently together. Mr N has two young children with whom he spends regular alternate weekend time and if I accept the evidence of the mother, is a person well known to the child already. Mr N was present in Court throughout the hearing.
The mother said that she had received help with the child from a counsellor after the first six months of separation. She had been told by this counsellor that if one parent disappears from a child’s life the child worries that the other one might disappear. She has attributed some of the child’s conduct to that possibility. The evidence she gave about dealing with the child’s fears which sometimes manifest as crying, sobbing and hiccupping and drawing in breath until he recovers, was to sit with him, talk to him, wait for him to calm down and to give him a cuddle. The mother said there was often a chain reaction in the household where J would become upset then she would become upset and the child would become calm and comforting of them, but the next morning would be “a mess himself”.
Again the mother was very positive about the child’s relationship with his aunt, although she felt that every Sunday was a bit much for him.
Whenever the evidence turned to the mother’s attitude to the father, she experienced some distress. Towards the end of her period of time in the witness box, she became intensely distressed and said more than once, “I can’t get past it”. Again referring to the shock of the father’s actions with J so soon after their separation, when she had seen the separation as being able to proceed amicably after the separation:
Two days after separation he does that to two children in his care and I have to hand over another child. I can’t get past it. It’s my child, one is already ruined.
I am satisfied that the mother has no present capacity to support a relationship between the child and his father. I am also satisfied that she would not reject the child if he did express an interest in seeing his father, but would be likely to discourage it until the child is 18 or close to it.

Evidence of the father, Mr Allcard

The father is in fulltime work as a sub-contractor. He agreed with the proposition of counsel for the Independent Children’s Lawyer that his own actions had wrought havoc on the mother’s family. He was then asked what was it that he had to offer the child which would justify removal from his mother’s care. He said he had stable accommodation, a stable job, stable family and friends:
I think I’m a good person. I was a loving father up until this incident [J’s assault]. I would spend time with him, take him fishing and surfing, sit down and talk to him about his problems.
This answer appeared to me to be a genuine statement by the father of his love and affection for his son and his very strong desire to re-establish a relationship with him. However, the focus of it was on his own need to see his son again and restore the relationship, without there having been any real reflection on the child’s point of view. He was asked how he would explain to the child what he had done to J. The father said he didn’t know how he would explain it and that he thought it might be better to have someone present to help him with that. Of considerable concern is his answer to the question, “What if the child says he hates you and wants to go home”, the father said that he would say to the child, “These are the orders it’s what has to happen.” The father then said, “In time he will accept it”. I consider the father’s answers lacked insight.
The father then went on to say that if the child came to live with him he had a plan to tell the whole school which the child attended about his offending and going to gaol, about the child coming back into his care and how sorry he was. Again, I consider that the father was expressing genuine remorse and a wish to repair the relationship, but his responses demonstrated no insight at all as to the impact on the child of his taking such a course. the child has already experienced some teasing and exposure to considerable community outrage directed at his father.
I consider it likely that the father has set about doing everything he can possibly do to restore his own life and to take whatever advice is offered to him, in an attempt to reconcile with his only child. In answer to a question asked in cross-examination by the mother about how the child would feel at school when the parents of his friends knew that the child was living with his father,

The father said this:
He’ll probably find it hard. I’ll find it hard. I’ve had to move on with my life.
Again, in my view this was an insightless response with its focus on what the father had done to move forward without spending very much time at all in considering the independent point of view of his 11 year old child.
The mother also asked the father how the child would feel if he lived with his father about bringing girls home that he was interested in. The father said he would cross that problem when he came to it and further, if the child lost friends through changing residence, he said this:
That’s one friend he needs more friends than that.
The father also said that if the parents refused to allow the child’s friends to come to his house then “that’s their decision”.
This is a reflection of what the father has apparently had to do which is to move away from those who reject him and concentrate on those who support him. He said that over weeks, months and years the child’s friends and members of the community “might judge me on the facts.” I took this to mean that the father thought that in time, when people came to know him as a person, they would accept him as someone who had made a mistake, paid for it and now no longer represented a threat. I consider this response was naive. It indicated the father already accepted that many parents of the child’s friends were likely to reject the notion of their child spending any time in his home. It also demonstrated the father considered it was reasonable for the child to have to wait months and possibly years for these attitudes to change.
The mother was evidently horrified when in response to a question from her the father said he had not been required to do anything in gaol to address his sexual offending. She posed this question to the father:
How will I feel safe when you have had no help? Another brain snap and you do these things to young children?
The father said he had been assessed as low risk.
The hostility and dislike between the parents was quite evident through the cross-examination by the mother of the father, although it was quite brief. There was considerable anger and mutual dislike on display.
Having heard the evidence of both parents, I came to the conclusion that the child should not be exposed to the anger and mistrust between his parents and that only one parent could be responsible for making the long term decisions about him.
I consider that the father loves his son and has been sustained by the prospect of reuniting with him.

Evidence of the paternal aunt, Ms M Allcard

The paternal aunt was an impressive witness, focused entirely on her nephew and not her own interests. She said she thought that time with her every week was a bit much for the child, “a bit forced, an imposition on him when she was not a parent.” She thought that every second or third weekend for a few hours would be better. She described the pleasure that the child takes in activities in the water, especially surfing. the child had made the comment to her, “wouldn’t it be great to be dolphin and swim out here”.
The paternal aunt impressed as a kind and sensitive person. She was quick to express her own view that she lacked experience with children, but that she tried to provide some fun, love and affection without pressure for the child. The paternal aunt readily conceded that she and her mother and brother would need a lot of help managing the child if there was a transition to living with them. She expressed the view that “there will be some short term grief for the child if he is separated from [the mother][5]”. I consider that the paternal aunt has under-estimated the impact on the child of the change of residence proposed.
[5] Affidavit of Ms M Allcard sworn 13/08/2012, para 15
The paternal aunt said that if the child asked her what his father had done to J, she would give an answer in similar terms that his mother had used, that is, that the child’s father had touched J in a way that no father should touch a child. the paternal aunt said that she would not introduce the child to his father without first discussing it with the child’s mother, until the child was of such an age that she was confident that he was thinking independently in the matter, perhaps 15 or older.

The paternal aunt has trodden an especially difficult path. She has been spending time with her nephew knowing how much her brother, the boy’s father, and her mother wanted not only to see the child, but to hear about his progress. She has kept her counsel and kept the confidence of the child’s mother in really difficult circumstances. She has provided respite and fun for the child and is living knowledge for him that there is a benefit to him of having meaningful connection to his paternal family. I am satisfied that there is a good relationship between the child and his aunt and that she has a great deal to offer him.

Evidence of the paternal grandmother, Ms D Allcard

The paternal grandmother fairly conceded that she did not like the mother, but I accept what she said that she would not be disrespectful about his mother in the child’s presence: “I just wouldn’t speak to him about his mother. No one should say anything negative about a child’s parents”.
The paternal grandmother too has been in a most difficult situation. She has gone from spending daily time on an informal basis with her only grandchild for the first six years of his life and has seen barely anything of him since. There is no doubt that she loves the child very much and also longs to restore the relationship between her son and grandson. I consider that the paternal grandmother has perhaps underestimated the impact on the child of the father’s application which proposes the child be separated from his mother, who has cared for him all his life, for a period of three months where he would not see her at all. The paternal grandmother fairly conceded that she would call on her daughter to comfort the child in his distress in that situation and that she herself would do her best to reassure him that his family loved him and wanted to look after him.
The paternal grandmother was cross-examined about remarks she is said to have made to the child when she was spending time in a contact centre with him, remarks about wearing thongs in cold weather and whether he was sufficiently well dressed.
I consider that the mother reacted to these remarks when she heard about them and that the child himself would have been oblivious to implicit criticism of his mother had that been intended.
I consider that the paternal grandmother has a lot to offer the child as a loving grandmother and that she would be as good as her word in not being critical of the child’s mother in his presence. She may well have been somewhat critical of the way the mother raised her children, especially her daughters, but I accept that the paternal grandmother understands the terrible emotional turmoil that has been caused in the mother’s household by her own son’s actions. It is to her credit that she has supported him in adversity.

Evidence of Family Consultant, Mr P

Mr P has provided three reports[6] and a joint conference report of Ms S, Psychologist[7]. The crucial report was the one prepared for this hearing. Ms S was not required as a witness and her report was not admitted into evidence. Accordingly, I give little weight to the report of the conference of joint experts.
[6] Reports of Mr P dated 09/07/2009; 29/07/2009; 05/04/2012
[7] Joint conference of Experts Mr P and Ms S dated 21/06/2010
Mr P gave strong and forceful evidence about the necessity for the mother to reduce her own distress in order to meet the child’s needs. He said that the mother had undergone an inordinate amount of stress in relation to J, that she had not engaged in a therapeutic relationship and that in his view the mother felt considerable guilt over what had happened and so she was targeting the father.
Mr P said that he believed that the child likely held a genuine belief that his father was not a good person. He thought that the paternal aunt had been a very good influence and that allowing the child some independence as to when and if he wanted to see his father would be beneficial to him.
I concluded from Mr P’s evidence that the pressure on the child from all quarters needed to stop. Mr P indicated that further pressure would lead to total confusion for the child and that he would likely act out. The risk in the mother’s household he felt was that there would be no reality checking there, that the child would believe that his father was a person without any redeeming features. I accept the evidence of Mr P that there is a risk to the child’s mental health and behavioural problems if the distress in the mother’s household continues at present levels.
Mr P confirmed the statements made in his reports that in his view what the mother referred to as her liberal approach to raising her daughters had amounted to somewhat inadequate parenting in some respects and that the girls had been exposed to alcohol and marijuana in early adolescence in an inappropriate way. In relation to the concern expressed on behalf of the father that the mother may apply an inappropriately liberal attitude to raising the child, Mr P felt that she would have gained some insight into the consequences of a liberal attitude through the experiences of her older children.
He considered that the mother has stabilised her lifestyle and remained in Town Q for the last two years. The following evidence was significant.
Mr P said it was best for the mother to see an expert in the area of sexual assault of children and that there was a sexual assault worker in Town Q and two within one hours drive of Town Q. Mr P was optimistic about outcomes if the mother undertook such a therapeutic intervention. If she engaged in that therapy, she would not want to or need to speak about the father so much. His view was that the mother had not been abusive towards the child, but her own grief made her unavailable to him.
Mr P’s view was that it was a finely balanced situation as to where the child should live, with serious loss to the child either way. It was a matter of choosing the least damaging option. Staying with his mother who had had no therapeutic intervention to lower her stress and re-open her mind to his emerging needs, or moving to his father who had in a sense disqualified himself from having a relationship with his son through his sexual abuse of J.
Ultimately Mr P said that he leaned towards the child staying with his mother “by a couple of hairs”. He thought that by 13 or 14 the child may have the maturity to make decisions and that his independence in the matter should be supported.

The law

Parental responsibility

Each parent has responsibility for a child who is not 18 unless the Court orders otherwise.
In this case the child’s mother has had sole parental responsibility for him since 2009. The father has not effectively exercised parental responsibility for the child since April 2007. This is not because he has lacked interest in the child, or has not wanted to participate in decision making. Rather the relationship between the parents has completely broken down and is non-existent. They have no capacity to communicate and the mother has no trust whatsoever in the father as a parent. The Court is now being asked to make fresh parenting orders.
The Court must therefore apply a presumption that is in the best interests of the child for his parents to have equal shared parental responsibility pursuant to s 61DA (1) of the Family Law Act 1975 (Cth) (“the Act”). In this case the presumption does not apply since the evidence established that the father, has engaged in abuse of a child who is a member of the child’s family, see s 61DA(2) of the Act.
In this case, the evidence supports the mother continuing to have sole parental responsibility for the child. The father has consented to this course for the last two years, despite his criticism of the mother and his disappointment about her unwillingness to facilitate a relationship between himself and the child. I consider that the consent to the mother’s sole parental responsibility is an acknowledgement by the father of her capacity to meet the child’s long term needs.
Since the presumption of equal shared parental responsibility does not apply, the question of where a child lives and the time they spend with each parent is at large. The evidence in this matter satisfies me that the child should continue to live with his mother as he has done for the whole of his life. The father’s proposal for a change of residence would involve a punishing transition for the child. He would be removed from the loving care of his mother and from contact with his two older sisters and from his sister J’s two young children. the child is primarily attached to his mother, although this has been assessed to be an anxious attachment. He is protective of her and is presently rejecting his father. The basis for that rejection is at least to some extent his own personal reaction to the father’s sexual abuse of his sister J. The child is also affected by his own extremely adverse feelings towards his father.
J is psychologically unstable at this time based on the evidence of her mother. At times she is close and dependent with her mother, at other times angrily hostile and blaming her for introducing the father into her life. The impact on the child is to have made him protective of his mother and sympathetic to his sister. It has also made him anxious but to remove him in the way that is contemplated is punitive. He is likely to lose his friends at school and to be overwhelmed by having been forcibly placed into his father’s household.
Equally significant is that if he was to initially live with his paternal aunt and then to be passed into the residence of his father, it is highly likely that the child would lose trust and confidence in his aunt. I assess the relationship between the child and his aunt to be an important one, with significant benefits now and into the future for the child. It should not be put at risk in this way. the aunt has promised the child that she would not take him away when he raised that concern with her. She should not be put in the position where she has to break that promise.
Accordingly orders are made for sole parental responsibility with the mother and residence with her.
The Independent Children’s Lawyer sought an order that the father have regular access to information about the child’s health through copies of reports. the child has no particular physical health problems. Although there is some merit in this proposal, it would require the mother to keep the father advised of treating medical practitioners and the state of the child’s health and medical advice. The parents do not have the capacity to engage with each other in this way.
I do not consider that there is sufficient benefit to the child to make an order about this specific issue.

Should the child spend time with his father, grandmother and aunt?

Best Interests of the Child Section 60CC of the

In determining what is in a child’s best interests the Court must consider the following matters.

Section 60CC(2)(a) The benefit to the child of having a meaningful relationship with both of the child’s parents; and (b) the need to protect the child from physical or psychological harm

The child does not presently have a meaningful relationship with his father. He is conscious of his father and his father’s wish to have the child come to live with him. He is finding that upsetting and unsettling. He does have a meaningful relationship with his mother, although there is anxiety in his attachment to her. He is probably fearful of losing his relationship with her and/or fearful that she will be unable to meet his needs because of her own distress.
The child has not been exposed to abuse, neglect or family violence.

Additional Considerations

Section 60CC(3)(a) any views expressed by the child and any factors that the Court thinks are relevant to the weight it should give to the child’s views

The child has expressed a strong forceful view that he wishes to spend no time with his father.
In 2009 he was pleased to see his father, content to talk to him and willing to express the idea that he had missed his father. Since then the situation has deteriorated. The child’s views now are hostile towards his father. No doubt he blames him for having been brought back from Queensland and from South Australia and for the ongoing dispute in the Court, at least to some extent.
The child is assessed to be a young 11½ year old boy. He is repeating year 5 and therefore has another full year at primary school. I consider that his views should be given considerable weight, given his situation, but I also consider that his interest in seeking out his father has been subordinated by his own needs to relieve pressure and to be supportive of his mother and sister.

Section 60CC(3)(b) The nature of the child’s relationships with each of the parents; and other persons

The child has a close and affectionate relationship with his mother, but becomes anxious when they are apart in a way that is concerning, given his age and stage. He does not like to travel to school without her; he becomes panicky if arrangements are not met exactly on time.
The child has had no significant relationship with his father for five and a half years.
The child does have an important positive relationship with his paternal aunt, which has been sustained by regular short periods of time spent in enjoyable activities such as water activities, camping and outdoor play. The paternal aunt has been willing to support his school friendships by having another child come with him. It is essential that this relationship be protected and preserved.
The child has had a very good loving relationship with his father and his paternal grandmother in the past. Unfortunately, the child now sees his paternal grandmother as somebody who is a part of his father’s family putting pressure on him to come to live with them and is reacting to that. He may have a memory of enjoying time with his grandmother early in his life.

Section 60CC(3)(c) The willingness and ability of each of the child’s parents to facilitate and encourage a close and continuing relationship

I consider that the mother has no willingness and no present ability to facility a relationship between the child and his father. She does have that ability in relation to the relationship with the paternal aunt and may be able to tolerate contact between the child and his paternal grandmother in time.

Section 60CC(3)(d) The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of the parents; or any other child, or other person

To separate the child from his mother and maternal family at this time would undoubtedly do damage. If the child went to live with his father, he would take a series of losses at home and at school. He would find it extremely difficult to understand why he was living with a person who had caused so much sadness and distress in his mother’s home. Friendships at school and stability at school could be put at risk. I do not consider the benefit to the child of restoring the paternal relationships if that were to happen by a change of residence outweighs the potential risk to him of disrupting his present circumstances.

Section 60CC(3)(e) The practical difficulty and expense of the child spending time with and communicating with a parent

There is no geographical or financial reason why the child could not spend time with his father and extended family.

Section 60CC(3)(f) The capacity of the child’s parents and any other person (including any grandparent or other relative of the child) to provide for the needs of the child, including emotional and intellectual needs

The child’s father has experienced an enormous upheaval in his life. He has spent time in gaol, he has lost his reputation in the community, he has had the unfailing support of his mother and sister and some of his friends. He has become focused on restoring his life and re-engaging with his son. He has some capacity to provide for the child’s emotional and intellectual needs, but appears to lack insight into the child’s point of view.
The mother has the capacity to meet the child’s emotional and intellectual needs. She recognises his intelligence and ability at school. She has some limits on her capacity to meet his emotional needs through her own high levels of emotional distress

Section 60CC(3)(g) The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of the parents

The child is an 11 year old boy who is anxious and under pressure. He presently has quite a strong wish to be left alone in the sense that he no longer wishes to be questioned, interviewed or counselled in relation to problems in his household, or the assault on his sister.

Section 60CC(3)(i) The attitude to the child and to the responsibility of parenthood, demonstrated by each of the child’s parents

The mother is meeting all of the child’s day to day needs. Since the father has re-established himself he has been paying child support.

Section 60CC(3)(l) Whether it would be preferable to make the order that would be least likely to lead to the institution of future proceedings in relation to the child

There has been protracted litigation between the parties over the child. The child knows that. Final orders were made two years ago which provided for the gradual reintroduction of time between the child and his father. The plan captured by those orders has not come to pass.
The evidence of the mother is that she never supported time between the child and his father, does not regard the father as a safe person and cannot really understand why she should put her son the child at risk in the hands of a perpetrator of sexual assault on another one of her children.
Mr P gave evidence that the pressure on the child needs to be relieved. One way to do that is to make final orders which give the child some independence and the opportunity to seek out his father in the event that he wants to before he reaches adulthood at age 18.

Section 60CC(3)(m) Any other fact or circumstance that the court thinks is relevant

For all these parties there have been tragic consequences as a result of the events of 2007. The parents had separated in circumstances where certain difficulties were raised, but the expectation of both was that they would each go on being parents, not only to the child, but also to J, the mother’s younger daughter, J having regarded Mr Allcard as her father.
Instead relationships were fractured. The mother has on two occasions sought to go interstate to put as much distance as possible between herself, the child and the father. The father has struggled to restore his life. The mother urgently needs to reduce her own levels of stress in order to attend to creating a more peaceful future for herself and therefore for the child.
The child needs to be given some authority over when and if he makes contact with his father and grandmother. Orders for him to make those decision have been made accordingly

I certify that the preceding one hundred and twenty-four (124) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 21 September 2012

Associate:

Date: 21 September 2012

[2012] FamCA 813

21 September 2012

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Jurisdiction

Remedies

Procedural Fairness