DRUMMOND & EDEN
[2010] FamCA 180
•11 March 2010
FAMILY COURT OF AUSTRALIA
| DRUMMOND & EDEN | [2010] FamCA 180 |
| FAMILY LAW – CHILDREN – wth whom a child lives – with whom a child spends time – finding of unacceptable risk – whether father’s time with the children should be supervised – domestic violence FAMILY LAW – CHILDREN – parental responsibility – presumption of equal shared parental responsibility does not apply due to unacceptable risk – also not in the best interests of the child – mother to have sole parental responsibility |
| Family Law Act 1975 (Cth) ss 60B(1), 60B(2), 60DA(2), 60CC, 61C, 64B(2), 65DAA(1) |
| G and C [2006] FamCA 994 Sedgley & Sedgley (1995) FLC92-623 |
| APPLICANT: | Mr Drummond |
| RESPONDENT: | Ms Eden |
| INDEPENDENT CHILDREN’S LAWYER: | P L Cobry & Co. |
| FILE NUMBER: | LNC | 650 | of | 2007 |
| DATE DELIVERED: | 11 March 2010 |
| PLACE DELIVERED: | Hobart |
| PLACE HEARD: | Launceston |
| JUDGMENT OF: | Benjamin J |
| HEARING DATE: | 17, 18, 19 February and 1 March 2010 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Gibson |
| SOLICITOR FOR THE APPLICANT: | Zeeman Kable & Page |
| COUNSEL FOR THE RESPONDENT: | Mr Fitzgerald with Ms Hunt |
| SOLICITOR FOR THE RESPONDENT: | Legal Aid Commission |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr J Waterhouse |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | P L Corby & Co. |
Orders
BY CONSENT
The mother have sole parental responsibility for E born … July 2000, N born … February 2002, M born … July 2003 and A born … April 2005 (“the children”) such parental responsibility to include:-
(a)the sole authority to apply for passports for the children or one or either of them;
(b)determining where the children live within the Commonwealth of Australia;
(c)permitting the children to leave Australia for the purpose of holidays or travel overseas for periods not exceeding six (6) months;
(d)changing the surname of the children from Drummond to Eden;
(e)determining which schools the children should attend
The children live with the mother.
ORDERS BY DETERMINATION
Except as specifically provided in these orders or as otherwise agreed in writing between the parties, the father be restrained from approaching or meeting the children or any one of them, communicating or spending time with the children or any one of them or going within 200 metres of the home of the children and their respective schools.
Both parents provide a post office box or other mail address to the other party (through their respective solicitors) within fourteen (14) days of these orders and keep the other party informed, through such addresses, of any changes of such mailing address.
The father communicate with the children by way of letters and cards which are to be posted to the mother’s postal addresses provided:-
(a)Commencing December 2010 the father may send one (1) card to the children (as a group) for Christmas and one card to each of the children for each anniversary of the birthday of such child; and
(b)Commencing 1 March 2011 the father may forward two letters per year to the children (as a group) on or about 1 March and 1 September; and
(c)the mother may read such letters and cards and those which the mother considers are inappropriate are to be returned to the father. The remainder are to be offered to the children to read if they wish and if they do not wish to read that material it is to be retained for them for the children’s later reading or for a child to have a copy of such letters and cards after each child’s eighteenth birthday.
(d)The mother may nominate an independent person to read the letters and cards instead of or in addition to herself.
(e)Nothing in these orders requires the mother to encourage the children to read or reply to any such letters or cards.
(f)Nothing in these orders imposes any duty upon the children to respond to such letters, cards or presents.
(g)If the children decline to read the letters and/or cards the mother shall keep them (or copies of them) and provide access to them if the children ask to see and read them.
(h)Such letters or cards shall not contain any words or expressions that explicitly or implicitly expect a reply, raise any aspect of the matters of the father’s past conduct including any reference to the criminal matters to which the father pleaded guilty and the surrounding circumstances.
Each year the father is given permission to contact the children’s schools (but not to attend the schools) to arrange for a copy of each of the children’s end of year school reports to be forwarded to him. After each child commences her second year of High School such report may only be provided if the child consents.
Each year the father is given permission to contact the children’s schools (but not to attend the children’s schools) to arrange for a single photograph of such child to be forwarded to him, at his expense. After each child commences her second year of High School such photograph may only be provided if the child consents.
The mother shall notify the father of any significant illness or injury to the children or any one of them. The mother shall comply with this order if she provides such information to the father within a reasonable time after the discovery of the illness or after the injury.
At her discretion, the mother is given leave to provide a copy of Dr H’s report and these reasons to the Principals of the children’s schools and to any counsellor or health care professional treating the children.
If the father commences any parenting proceedings (other than enforcement) before 30 July 2014, he must first seek the leave of the court before serving any such application for proceedings upon the mother. Nothing in this order relieves the parties of the obligation to attend Family Dispute Resolution provided by s 60I of the Family Law Act.
That pursuant to s 65DA(2) and s 62B, 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.
The mother and the Independent Children’s Lawyer are to make arrangements for Dr H to inform E and N of these orders within twenty eight (28) days.
The appointment of the Independent Children’s Lawyer be discharged at the expiry of twenty eight (28) days from the date of this order.
This matter be removed from the list of cases requiring determination.
All exhibits are to remain on the Court file.
All subpoenaed documents be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same.
IT IS CERTIFIED
Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend
IT IS NOTED that publication of this judgment under the pseudonym Drummond & Eden is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT HOBART |
FILE NUMBER: LNC 650 of 2007
| MR DRUMMOND |
Applicant
And
| MS EDEN |
Respondent
And
INDEPENDENT CHILDREN’S LAWYER
REASONS FOR JUDGMENT
INTRODUCTION
Mr Drummond (“the father”) and Ms Eden (“the mother”) have four daughters, E aged nine, N aged eight, M aged six and A aged four, almost five.
In 2008 the father pleaded guilty to a number of serious charges being:-
a.He sexually assaulted the mother’s niece (then aged 8) in 2002.
b.He indecently assaulted his eldest daughter (then aged 2) on two occasions.
c.In 2006 he sexually assaulted his wife’s niece (then aged thirteen).
d.In 2006, in breach of bail conditions and in breach of an interim family violence order, the father entered the mother’s home through an unlocked window and sexually assaulted her.
As a consequence of the father entering pleas of guilty to those offences he was sentenced to fifteen months imprisonment. Six months of his sentence was automatically suspended. The father was released in September 2008 after serving a total of six month in prison.
He now seeks parenting orders in respect of his children. Those orders are opposed by the mother.
BACKGROUND
The father is aged 39 and the mother aged 38. The mother has one child from a previous relationship, T aged 15. T continues to live with the mother and his sisters.
The parties married and commenced cohabitation in September 1999. They separated on 12 November 2006.
The circumstances of their separation arose when the mother became aware of the indecent assaults by the father on her nieces.
Soon after the parties separated, the father disclosed to the mother that he had sexually abused their eldest daughter. At about the same period of time the father surreptitiously entered the parties’ house, took E out of bed and had a discussion with her. The father says that this occurred in circumstances where he wanted to say goodbye to this child and tell her that he loved her.
On 23 November 2006 an interim family violence order was made. On
27 November 2006 the father was interviewed by the police and immediately after the interview he was served with the interim Family Violence Order. He was told by the police not to go to the mother’s home.In December 2006 the father, in breach of his bail conditions and in breach of an interim Family Violence Order, entered the parties’ home late at night and sexually assaulted the mother.
In May 2007 the father entered pleas of guilty to the majority of the charges in the Supreme Court of Tasmania and in October 2007 he commenced proceedings in this Court. This matter was listed as a Magellan matter. An Independent Children’s Lawyer was appointed and interim orders were made providing that the children live with the mother, that she have sole parental responsibility and the children spend no time with or communicate with the father.
The father has not spent any time with or communicated with any of the children since November/December 2006.
At the commencement of the hearing of this matter on Wednesday 17 February 2010 the father initially sought orders that; he and the mother have equal shared parental responsibility, the children live with the mother and the children spend time with the father every Saturday (in opening his counsel said this ought to be supervised for a limited period of time).
After discussion between the bench and his counsel, the father abandoned his application for orders for equal shared parental responsibility.
At the commencement of the second day of hearing the father profoundly changed his position and said that he would consent to orders that the mother have sole parental responsibility, the mother be permitted to change the children’s’ surnames to Eden, that the father spend no time with the children and not communicate with them directly, that the children live with the mother and a number of other ancillary orders.
At that point in time the parenting issues were narrowed down to whether the father could send letters, card and presents to the children and if so, on what frequency and pursuant to what conditions. The father also sought permission to be provided with school reports and school photographs of the children and to be informed of any significant illness that affected their health.
The mother and the Independent Children’s Lawyer consented to the orders regarding parental responsibility and with whom the children should live.
The mother opposed any form of communication or contact between the father and the children.
In final submissions the Independent Children’s Lawyer said that the only form of contact between the children and the father should be by letters twice per year, cards and presents plus a photograph and school reports. The cards were to be sent to each of the children at Christmas and on their birthdays.
In addition the Independent Children’s Lawyer submitted that in terms of letters and cards they ought to be read by the mother or someone nominated by her. He also said that they ought to be kept for the children should they wish to read them in the future if they chose not to read them at this time. The letters would need to be constructed in a way that did not elicit a reply or in any way give a benign explanation to the father’s behaviour. Otherwise there should be no further contact
THE ISSUES
The issues then became:
a.Whether the father should be sent school reports, and if so, until what time and what power, if any, the children had in relation to the provision of that information ceasing or continuing. The father’s counsel conceded that once the children were in their second year of High School the sending of reports and a photograph should be subject to the child’s consent
b.Whether the father should be sent school photographs and what involvement, if any, the children would have in relation to the provision of that information continuing or ceasing.
c.Whether the father should be allowed to send letters, cards and presents to the children; and if so:-
(i) The frequency of those letters, cards and presents.
(ii) Whether there ought to be a neutral person to read those letters.
d.Whether the mother’s application for injunction under s 68 of the Family Law Act 1975 (Cth) (“the Act”) should be considered.
e.Whether there should be any further requirements placed on the father to undergo more counselling.
f.Whether there should be some limitation of the father commencing proceedings.
There was no issue that the mother or someone responsible on her behalf would have permission to read that material and reject any letters and cards which she believed were was not in the children’s best interests (having regard to the evidence of Dr H about what the letters and cards should and should not contain). Further that there should be no direct or indirect pressure on the children to read the letters or cards or respond to the father.
In these reasons any statement of fact should be regarded as a finding of fact unless the contrary is clear from the context.
THE RELEVANT LEGAL PRINCIPLES TO BE APPLIED
In exercising its jurisdiction in relation to children, the Family Court is bound by the provisions of the Act. The objects of the provisions of the Act relating to children are to ensure that the best interests of the children are met by[1]:-
(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.
[1] S 60B(1) Family Law Act 1975 (Cth).
The principles underlying those objects are that, except when it would be contrary to a child’s best interests[2]:-
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
[2] Ibid s 60B(2).
Each of the parents of a child has complete but several parental responsibility for such child.[3] Section 61DA provides that a court must apply a presumption that it is in the best interests of a child for that child’s parents to have equal shared parental responsibility for the child.
[3] Ibid s 61C.
If the presumption is in the best interests of the child and reasonably practicable,[4] then a court must make a positive order or declaration for equal shared parental responsibility under s 61DA of the Act. If not, then the court must either make a declaration that the presumption does not apply as a consequence of s 61DA(2) or, if the parenting order is made in interim proceedings, the court must find that such a joint parental responsibility order would not be appropriate in the particular circumstances of that case under s 61DA(3). Additionally, if the presumption would not be in the best interests of the child then the court should make a declaration that the presumption has been rebutted pursuant to a determination made under s 61DA(4) of the Act.
[4] Ibid s 65DAA(1).
Once the question of parental responsibility is resolved then the court needs to determine the question of with whom the child lives and/or spends time with and the degree of communication a child is to have with another person.[5] In this case there is no issue as to where the child lives, the only question is whether the child should spend time with or communicate with the father.
[5] Ibid S 64B(2) sets out the meaning of a parenting order and related terms.
In determining what orders it should make the Court must regard the best interests of the child as the paramount consideration. Section 60CA of the Act provides:-
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
The factors that the Court takes into account in determining what is in the best interests of a child are set out in s 60CC of the Act.
Under the Act the best interests of the child are determined under a two tiered approach pursuant to s 60CC, which lists the ‘primary considerations’ and ‘additional considerations’. A court must consider the matters set out in s 60CC unless considering a consent order, in which case the court may, but is not required to, have regard to the matters set out in ss 60CC(2) and (3) of the Act.
To give effect to s 60CC(2), the Court must treat the listed considerations as being the “primary considerations”. This does not mean that they inevitably outweigh the other considerations, but some weight must be attached to the term “primary”. The Court must consider each of the additional considerations separately.
The Court should also have regard to all of the matters set out in s 60CC to consider how, together, they should give effect to either or both of the primary considerations in determining the child’s best interests. It must not be forgotten that s 60CC (1) makes clear that :-
Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).
In this case the primary considerations set out in s 60CC(2) of the Act go to the core of this decision, although they must be taken into account with the other considerations under s 60CC(3).
The import of a meaningful relationship in the context meaning of the primary considerations was considered by Bennett J in G and C.[6]
[6] [2006] FamCA 994.
I agree with her Honour’s approach that “the court must evaluate the nature and quality of the relationship to establish whether there is any “benefit to the child” in having or continuing a relationship and whether such relationship is or will be “meaningful”.[7] The evaluation should include consideration of whether, on the facts, a meaningful relationship can be established and, if so, whether it is of benefit to the child.
[7] Ibid paragraph 68.
There is no statutory guidance as to what factors I should consider in determining what constitutes a “meaningful” relationship between a child and a parent. Some of the considerations I regard as relevant and which I take into account are as I set out in Cave & Cave [2007] FamCA 860:-
a)The nature of the relationship which has existed in the past between the parent and the children;
b)The extent to which the parent in question has sought to be involved in the children’s lives;
c)The attitude of the parent in question to the children, their primary carer and other significant persons in their lives;
d)The general social behaviour of and the role model which would be provided for the children by the parent in question;
e)The personal disposition of the parent in question, that is, is he or she able to engage in a meaningful relationship with the children and for the benefit of the children;
f)What can be discerned from the evidence about the children’s view of the relationship, or if they are too young or unable to express a view, what is the most likely view they may hold having regard to their ages and level of maturity.
g)The other considerations under ss 60CC(2) (b), (3), (4) and (4A) of the Act, insofar as they may have an impact on the relationship between the children and the parent.
If orders are not made as sought by a parent, what would be missing from the lives of the children at present and into the future.
THE EVIDENCE
The father
The father gave evidence in accordance with his affidavits filed 16 October 2007 and 1 February 2010.
The father was not a particularly impressive witness. When he gave evidence of entering the former matrimonial home in November 2006 and taking E from her room he believed that his actions were justified as he was there to say a final goodbye and knew he would not be coming back. At many levels that indicated lack of insight.
In the statements of fact he provided to Dr H and to his counsellor,
Mr D, and to his psychiatrist he had difficulty acknowledging the culpability of his acts. When he first spoke to Mr D, his sexual abuse counsellor, he refuted all of the accusations against him with regard to violence, and whilst acknowledging that sexual contacts had occurred, he believed they were accidental and were an outcome of innocent play, not deliberate, deviant behaviour.In his evidence to Dr H the father similarly understated, minimised or misstated what had occurred in terms of his behaviour.
The father, to a limited extent, is now conceding his behaviour. He also concedes his behaviour of physical violence, emotional violence and anger throughout the marriage. It is troubling that even now to his counsellor, Mr D, the father continues to state that the events were primarily ‘play accidents’[8].
[8]Affidavit of Mr D filed 1 February 2010, annexed report page 4.
From his evidence I am not convinced that the father fully understands the impact of his sexual assault on the mother in December 2009. He said he was there with love and observed that the mother made him a cup of tea. He did not understand that the mother’s response was a protective mechanism put in place by her to shield herself and the children from the father.
Over the period of time when the father sexually abused the children and the mother he was a user of cannabis. I do not accept that the father’s aberrant behaviour was entirely as a consequence of his drug use.
At one stage the father claimed that the mother may have acted in a sexual way to their elder daughter. I reject his implicit criticism of the mother and accept her evidence that the incident was innocuous and nothing more than treatment of nappy rash.
When pressed on the sexual abuse of the elder of his nieces, it was clear that the reason why he stopped abusing her was because of her adverse reaction rather than any self recognition of himself.
The father admitted that he placed his erect penis on his eldest daughter’s thigh and that he was aroused by this. He sought sexual gratification with his daughter and his nieces over a period of time between 2002 and 2006. The victims of his abuse were aged two, eight and thirteen.
When the father spoke to Dr H in relation to the November 2006 sexual assault of his niece, he endeavoured to blame his niece by implying that her flirtatious behaviour had started the contact.
The mother gave evidence that during the relationship she was regularly challenged by the father about what work she undertook in her role as parent and homemaker. The mother made lists which she produced to the father to justify such work. I accept the mother’s evidence in that regard. The father was cross-examined in relation to those lists. He was unwilling or unable to acknowledge that the reason why she made the list was as a defence mechanism against his controlling and/or abusive behaviour.
I accept the evidence of the mother and statements of the elder children that, during cohabitation, the father was an angry person. He was verbally abusive to the mother and was physically abusive of her. He smacked the children and acknowledged that he was physically violent to them. He punched a microwave oven and punched walls in the presence of the mother.
The father is a very big and powerful man who now understands that his behaviour instilled fear in the mother but did not have any insight into it at that time. I am not sure, having regard to his demeanour, that he still understands the impact of his behaviour to her in the broadest sense. He was loud and aggressive in his verbal communications and the children would have been aware of this by living in the home. The mother and children lived in fear of his temper and abuse.
After he had been cross-examined the father dramatically changed his case in terms of the orders he sought. However, in the months that preceded the hearing, the mother and elder children (including T) lived in fear that face to face time would resume. This is in circumstances where on any objective legal analysis of the father’s case, he was unlikely to succeed.
The father’s counsellor
Evidence was given by Mr D, the father’s counsellor, in accordance with his affidavit filed the 1 February 2010. Mr D has his basic training as a counsellor but has worked in dealing with sex offenders for about eight of his nine years of practice and has had training in that area of work subsequent to his undergraduate degree. He has been counselling the father since January 2007 and the father has been a regular attendee at those sessions. The sessions stopped whilst the father was incarcerated.
I am satisfied that Mr D is qualified to counsel and assist people who commit sex offences, such as the father.
He says the father has developed some insights into his behaviour however, he was unable to quantify those insights except to say that there had been a significant change in the father as between before he was incarcerated and after he was released.
In many ways Mr D undertook the therapy (perhaps not to the extent as suggested by Dr H) as set out on page 36 of Dr H’s report. I am satisfied that the father has undertaken intervention with regard to anger, his use of alcohol and cannabis and factors such as his emotional immaturity. Mr D’s evidence was that the father had significantly changed his behaviours with regard to alcohol and drugs and had changed his practices and in fact his associates in a proactive way.
Mr D was impressed that the father had continued to engage in the difficult type of counselling they undertake (particularly in circumstances where the factual issues of the offender are challenged).
I generally accept the evidence of Mr D, although some of his conclusions are more focused on his view of the perceived needs of the father rather than the interests of the children.
Dr H
Dr H gave evidence in accordance with her report.[9] Her qualifications were not in issue and I accept her evidence and generally the recommendations she made in her report and oral evidence.
[9] Dated 30 April 2010.
Dr H was asked about what effect the father sending letters and cards and presents and having information about the children, would have on the children.
Dr H’s evidence was that it was important for the children to know that their father loved them and did not reject them. She was supportive of the father sending letters, cards and presents to the children subject to a number of strict requirements including:-
a)The option for the children to be able to reject such contact.
b)The mother retaining the letters so that the children, as they mature and perhaps even into their adult years, can have a perception of their father.
c)The letters (at least initially) being less frequent (certainly not fortnightly).
d)The content of the letters be controlled so that it did not expect replies nor did they offer inappropriate explanation. Dr H described the material and letters would need to be lightweight.
In terms of the impact on the mother Dr H believed the mother would cope with it but suggested that perhaps a neutral party could check and monitor the letters and cards if the mother found it stressful.
In terms of the eldest daughter, Dr H said she may reject the correspondence, and that she should feel free to do so. However, it may be that in the future she may want to see and read them. Dr H said that there must be no pressure placed on the children to respond.
When cross-examined by the mother’s counsel, Dr H said it would be of value that a report be obtained as to the father’s readiness to address the issues as set out in her report at page 36. Having said that I am satisfied that the father’s continued involvement with Mr D addresses that issue, particularly as Dr H’s report was about two years old.
The mother
The mother gave evidence in accordance with her affidavit filed 19 January 2010.
As I have indicated earlier, there was a suggestion by the father’s that the mother had acted inappropriately with regard to their eldest child E. The evidence of the mother, which I accept, was that she had taken steps to sooth an infection when the child was very young. I accept her evidence in that regard.
The suggestion that the mother had somehow acted inappropriately was raised by the father in circumstances to ameliorate his own culpability with regard to that child.
The mother was criticised in relation to her assertion that E had made a disclosure to her a year or so prior to November 2006. The mother’s evidence to the police was that some time prior to November 2006 E had recommenced wetting the bed. The mother was concerned about this in terms of the child’s emotional well being. She informed the police of that circumstance.
Later in her evidence the mother said that she had discussions with E in relation to the bedwetting and E had disclosed to her that the father had sexually abused her.
The mother said she raised the issue with the father who said that he had hit E in the head with his penis when she interrupted him whilst he was urinating. The mother accepted this explanation but was uneasy about it.
The mother was criticised by counsel for the father as to the quality of her evidence bearing in mind that she had not informed the police of this earlier event when she made a statement in November 2006. The mother says that the reasons she did not inform the police was that at that time she had been engaged in the police interviews for a long time, and upon reflection she felt ashamed that she did not do anything further to protect her child. The mother felt that she had betrayed her child and felt humiliated at the thought of the police disapproval.
The mother clearly expresses concern that she had not been sufficiently protective of her children. Yet each response she made, viewed in the context of what she then knew was entirely appropriate and child focused. With hindsight it is easy to be self critical but not necessarily appropriate.
I accept the mother’s evidence in this regard.
The abuse would have occurred either just before or just after the birth of the parties’ youngest child. The mother had had four children by the father and was committed to the relationship. It is understandable that the mother was looking for benign explanations as to the father’s conduct and accepted the father’s explanation.
I am satisfied that the disclosure made by E at that time was accurate.
The mother gave evidence that she discovered in the father’s possession or control a photograph of two naked children which had been downloaded from the internet. Initially the father denied downloading it, when confronted by the mother, and said it had been downloaded by an acquaintance or friend. The mother’s evidence was that she spoke with the friend’s wife and later, when confronted by the mother, the father conceded that he had downloaded the image.
The mother insisted that the father see a counsellor. She does not know whether he did so or not but she says that the father said that he had done so. I accept the mother’s evidence in preference to the father’s in terms of this issue of fact.
The mother was implicitly criticised by counsel for the father in that there had been discussions about the sexual abuse of the children. It is an extraordinary occurrence when a father sexually abuses his own child. The mother, quite understandably, had difficulty in her words “joining the dots” with regard to his behaviour to his own child. To then learn that the father had also sexually abused his eight year old and his thirteen year old nieces would have given rise to revulsion, anger distress, and discussion in any family. Ordinary people are generally not equipped to deal with these sorts of massive impacts on their families and lives in general. It is easy to reflect on what should and should not happen in the cool light of good information and hindsight. It is much harder to live the reality of that sort of nightmare, as it would have been for the mother, her five children and her broader family.
The mother has received counselling since November 2006 in circumstances where she was fearful for her safety and that of her children, was hypervigilent and suffered significant lack of sleep. I am satisfied that the anxiety and fear has impacted on the mother’s capacity to manage the parenting of the children since November/December 2006.
Fortunately, the mother has had psychological and emotional counselling through Laurel House which has enabled her to work through her feelings of anger, exhaustion, frustration, fear, nightmares, resentment, betrayal, trust and grief. It has also enabled the mother to support the children at the same time.
The mother has been focusing on caring for her children and assisting them, in particular E, through her difficult times.
The impact of this has been profound on all of the children including the mother’s eldest son who, on the mother’s evidence, is also profoundly affected by the abuse and violence which the father inflicted on this family.
The mother has a robust personality. She lived a life with the father prior to learning about his sexual abuse where he was manipulative, controlling and physically and emotionally abusive and violent. Notwithstanding that abuse the mother had the character and emotional strength to stand up to him including in terms of changing the children’s surnames and resisting his attempts to isolate her from his family and her family.
The mother acknowledges that the father, when giving evidence during the trial, appeared to have changed. However, she does not believe he has really changed. The mother’s evidence is that it is “a cover for him to get access to the children and cause them more harm”. She has a fixed view in that regard and it is unlikely to change.
In cross-examination by the Independent Children’s Lawyer the mother acknowledged the evidence of Dr H but could not agree with her. The mother is concerned that the father would use such contact to groom the children and that it would end up being an imposition by him into her household.
She was concerned about presents and the impact of some of the children getting presents and others not. It could create a division between the children, especially the elder daughter as she is likely to reject any gifts. I accept the mother’s evidence in that respect and I will not be making an order permitting the giving of presents. There is no reason, however, for the father to pay money to the mother in addition to his child support obligations and noting that in one of the letters.
I am satisfied that the mother is generally a witness of truth. Her evidence is subjective, as it could be bearing in mind the awful events with which she and the children have had to endure.
I am satisfied that if there are some letters or cards and provided it is not seen in the context of a “first step” in a longer process that she would manage and continue to provide effective and loving parenting for the children.
Evidence of Ms O
Ms O gave evidence in accordance with her affidavit filed 15 September 2010. Ms O is a counsellor/educator with Laurel House and has provided counselling and support for E since December 2006 and which counselling continues.
Ms O has a Bachelor of Behavioural Science and a Bachelor of Social work. Since obtaining those under graduate qualifications she has had extensive professional experience and as such she has an extensive understanding of the significant impact of sexual assault, rape and sexual abuse has on victims, their families and friends.
In June 2007 Ms O assisted E (then aged six) to provide a Victim Impact Statement for the Tasmanian Supreme Court.
In the Victim Impact Statement Ms O sets out the profound impact of the abuse by the father on E. This must be seen in the context of the shattering of the trust where E had experienced a sense of safety, love and being cared for which was then destroyed making her vulnerable to abuse in the future. E was exhausted, had disrupted sleep, frightening dreams and felt unsafe.
E had feelings of sadness and expressed over-whelming feelings of anger directed towards the father. Ms O concluded in the Victims Impact Statement that E had experienced significant psychological and emotional trauma as a result of the abuse and her family and peer relationships, education and social development have also been disrupted.
Since providing that Victims Impact Statement almost three years ago
Ms O has seen E on a further eighteen occasions. The counsellor says, and I accept, that E has continued to require counselling as she works through her feelings about her father, herself and her family, the impact of the sexual assault and the betrayal of trust.The counsellor observes that E continues to have anger and sadness and has expressed strong views that she does not want to see or have any contact with the father. She goes on to say that the possibility of seeing him is upsetting for E.
During cross-examination Ms O was asked whether, over time, E could cope with knowing that there is some correspondence from her father, but be provided with the comfort and knowledge that she could reject that correspondence and reject any contact. Ms O said that was something that could [emphasis added] be worked through.
Evidence of Ms R
Ms R is a counsellor educator with Laurel House who filed an affidavit on 19 January 2010. Ms R’s qualifications include having completed a Bachelor of Social Work in 2008 and having some pre degree and post degree practical skills.
As at January 2010 Ms R had worked with the mother for only one month, the mother having previously received counselling from another worker who was no longer at Laurel House.
As a consequence of health difficulties Ms R was unable to be available for cross-examination on her evidence.
Counsel for the father initially objected to the mother relying on that affidavit.
Having read the affidavit and being aware of the circumstances, surrounding Ms R’s unavailability, I admitted the affidavit into evidence subject to receiving submissions about what weight I should attach to it.
Most of Ms R’s affidavit contained historical issues which would have been admitted under the rules of evidence as business records in any event. Most of the descriptions in that regard reflect the impact of the father’s behaviour upon the mother.
Having accepted the mother’s evidence in that regard it is not contentious.
In her assessment, which was attached to her affidavit, Ms R made some comments in relation to the father. I give little weight to that evidence as I have the evidence of Mr D and of Dr H which was collected in circumstances where they had seen the father and had better knowledge of the matter. Ms R also gives evidence as to the impact on E. I give little weight to that evidence as I have accepted the evidence of Ms O who has been E’s counsellor for a significant period of time.
DISCUSSION
In this case the father concedes that there ought not to be an order that he spend any face to face time or communication with the children. Having regard to all of the evidence that is an appropriate position for him to take and I have made those orders by consent.
Clearly as a result of the assault by the father on the eldest child E and on the mother the presumption under s 61DA(1) cannot apply as the father has engaged in abuse within the meaning of s 61DA(2).
This is not a matter where there can be any consideration of time let alone equal time or substantial time.
Section 60CC(2) Factors
(a)the benefit to the child of having a meaningful relationship with both of the child's parents; and
The mother has a close relationship with the children and she is their primary carer. There is no issue that there is a benefit in the children continuing to have a meaningful relationship with their mother.
The real question is whether there can be a meaningful relationship between the children and their father.
In terms of the nature of the relationship that existed before separation I am satisfied that the father was physically and emotionally abusive of the mother and the children. He was violent in every sense and was coercive and controlling. I accept the evidence of the mother and the concerns set out by Dr H in her report.
On that evidence alone I would have been reluctant to make an order for the father to have direct contact or communication with the children.
In addition to this is his sexually abusive behaviour and in that regard I accept the evidence of Dr H, albeit that he has developed some better insights since her initial consultation.
The father seeks to be involved in the children’s lives and has done so since separation. To say that he lacked insight in that regard is a gross understatement. His approach in entering the home and removing the eldest child E from her bed to “say goodbye” is indicative of his then, and perhaps continuing lack of insight.
The father’s sexual assault of the mother in the circumstances to which he admitted defies understanding. The mother’s composure during that time was very brave and child focused. She did not know what fate would have met her and the children had she had lost emotional control.
In terms of his attitude to the children the father loves them, however it takes more than love to be a parent. There are responsibilities in that regard.
Having regard to the father’s past behaviour I can see no benefit to the children in having a meaningful relationship with him.
However the evidence of Dr H, which I accept, is that the impact upon children who are estranged can be quite profound in terms of their natural curiosity about a father and the possibility of the children feeling rejected by their father and possibly fanaticising about who and what he is. I am satisfied that there is some benefit in the children knowing that their father exists and eventually having access to information about him.
The father proposes sending the children letters, cards and presents on a regular basis. Having regard to the evidence of Dr H I do not accept that writing letters to all four children every two weeks would be in their best interests and has the capacity to cause damage to the mother. I find though that there should be no reason why the father cannot send one letter to all the children two times a year and send them a joint Christmas card and each a birthday card subject to the strict conditions which were outlined by Dr H. This will reduce the stress on the mother in terms of the quantity of material.
The first would be that the children would not be expected to read the letters if they chose not to do so. To that end it would be appropriate that either Dr H or Miss O inform the eldest two children of this so that they feel no responsibility. It will be up to the children to accept the cards and letters and presents.
The second would be that the mother is able to reject the letters and cards and send them back if she considers them to be inappropriate. In terms of being inappropriate this would include any letters which imply that they require answers or attempt to explain the father’s position with regard to his crimes.
In the words of Dr H the correspondence should be “lightweight” letting the children know about the father’s life. In that regard I am conscious of the impact of the assault upon the mother. The mother provided evidence from her psychologist, Ms R in terms of the impact of the assault on her. I also have the Victims Impact Statements. I will leave it open for the mother to decide whether she will adopt the role of checking the father’s letters or nominates some alternative mutual person to do so.
I will however require the mother to retain the letters and cards to enable the children to examine them at some stage into the future, should they choose to do so.
This is the only kind of relationship which I find would have any benefit to the children.
I will also allow the father to receive copies of school reports and one school photograph of each child per year. However, this will be circumscribed in that the children’s permission will need to be given once they commence Year 8 at high school.
Finally, I will require the mother to keep the father informed of any significant health difficulties of the children, or any one of them. I am satisfied that this will be in the best interests of the children in terms of them knowing that their father is informed, but at the same time prevent him from directly approaching them without either the mother’s permission or an order of this Court.
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Dr H was blunt in her assessment of the father. She says:-[10]
Therefore, it is my view that, in the current circumstances, the children would be in an unacceptable high risk of abuse by their father should he have unrestricted or unsupervised time with them. Although he may not intend to abuse them, it is my opinion that [the father] does not have the degree of control over his own behaviour which would be necessary to inspire confidence that he would not act inappropriately towards the children. Indeed, [the father] refused to label his behaviour towards his daughter and nieces, particularly his nieces, as motivated by sexual desire. There is little to support the notice that there are benign interpretations for [the father’s] actions. It may be argued that he accidentally touched the breast of his niece. However, examination of Child and Family Services records indicates that the account of the event provided by [the father] no way mirrors the account provided to the Department by family members of the niece with the exception of the child was using a computer at the time of the event.
[10] At page 33 of Dr H’s report dated 30 April 2010.
The father’s evidence now is that he sexually abused the three children. I am not confident that he has made a full and frank disclosure in that regard although I am satisfied that his insight has improved somewhat since February 2008. The children are and continue to be at unacceptable risk of sexual abuse by the father if allowed into his care.
The risk of abuse by this father to the children is broader than sexual abuse. His violent, controlling and coercive behaviour during the course of the marriage combined with the anger and physical and emotional abuse is also such that I am satisfied that there is an unacceptable risk of abuse to the children if they were to have any direct contact with the father.
The father, in evidence, expressed the view that he hoped at some stage to have some form of relationship with his children. He said that may take five years, ten years, fifteen years or more. It is clear that the eldest child E has suffered significantly as a consequence of the father’s violence and abuse. She and her brother T are fearful of his involvement in their lives.
The evidence of Ms O is that E has needed counselling over three years (which is continuing) and still does not feel safe from the father. She says that E has experienced:-
considerable demonstrable emotional trauma as a result of the sexual abuse and is vulnerable to further trauma should she be forced to have contact with [the father].
Any direct communication between the father and anyone of the children will have a profound and detrimental impact on the present family structure. Even supervised time would impact on the children, particularly with the father’s benign view of his past conduct. It would also be an overwhelming burden on the mother who is the sole parent to the children.
Having regard to all of the evidence and findings I am satisfied that the children would be at risk of emotional abuse by the father if he has any direct communication with them.
In view of the damage that has been done to this child I do not see that it is in any way likely that any further applications for face to face contact or communication with this child or the other children would succeed. However, that will be a matter for the father in years to come, if and when circumstances change.
I find the impact of the father seeing the other children would have a profound affect on the mother and on E having regard to her evidence and that of Dr H.
The impact of the orders I propose in terms of letters, cards etc is that it is open for the children to reject that contact. However, it provides a ready source of information should they become inquisitive about their father in their teens or beyond. They will also know that their father has not rejected them and the mother or somebody nominated on her behalf will be able to ensure that no benign veneer is placed over the father’s actions.
Dr H was cross-examined by counsel for the mother in relation to whether the father should complete all of the matters set out on page 36 of her report, prior to engaging in any correspondence with the children. Dr H recommended that this would be an appropriate step.
However, having regard to the evidence of Mr D and the relationship he has built up with the father and Mr D’s broad skills in dealing with sexual offenders, I am satisfied that this is sufficient for the purpose of sending letters and cards.
Mr D was intuitive about the information he received from the father. He did not accept it uncritically and in fact challenged it. Mr D was careful about his assessment of the father but at the same time positive in particular with the father’s determination to continue with difficult counselling sessions and changing his lifestyle so that real change was possible.
Section 60CC(3) Factors
(a)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
E is nine years old and has expressed strong views that she does not want any contact with the father. I have given significant weight to those views and those of her sister N. Their views are set out in Dr H’s report, the mother’s affidavit and the report of Ms O.
(b)the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii)other persons (including any grandparent or other relative of the child);
The father does not presently have a relationship with the children. He was at one time close to E.
The mother has a close, loving and supportive relationship with all of the children.
(c)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
The only issue in respect of this factor is the question of the mother’s ability to encourage a relationship between the children and the father. Having regard to the history of violence and abuse to the children, her nieces and herself it is understandable that the mother wishes to protect the children from any relationship with the father including receiving letters, cards and presents.
Dr H’s evidence was persuasive in terms of that material and also the ability for the children, if they wish, to reject such material.
The mother has adopted a child focused approach throughout the lives of the children. She displayed enormous courage and child focus to handle the father’s terrifying attack upon her in December 2006.
I am satisfied that the mother will retain the letters and cards for her children if ordered. I am also satisfied that she will continue in her role to protect these children by checking the letters, sent by the father, or having someone else responsible to do so.
(d)the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
In the present circumstances the children have no face to face contact with the father. The change I propose will allow some information to be passed on and some contact. Having regard to the evidence of Dr H I have put in place measures which will protect the children and enable them to know that their father exists.
The change in the children’s circumstance, which will occur by putting in place these orders reflects the evidence of Dr H and enables the children to avoid any contact with the father should they wish to do so.
The arrangements will impact on the mother, however I am satisfied that she has the capacity to manage that change.
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
I have put in place orders requiring each of the parties to provide a post office box or other address which will facilitate the orders I have made. I am satisfied that the parties have the capacity to manage this aspect of the orders.
(f)the capacity of:
(i)each of the child’s parents; and
(ii)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;
There is no issue about the mother’s capacity to meet the needs of the children. As I have set out earlier there are significant and overwhelming issues about the father’s capacity to parent adequately or at all.
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
This is not a relevant consideration in these proceedings.
(h)if the child is an Aboriginal child or a Torres Strait Islander child:
(i)the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)the likely impact any proposed parenting order under this Part will have on that right;
This is not a relevant consideration in these proceedings.
the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
The mother’s attitude is not in issue except in terms of encouraging the children, which I have addressed earlier in these reasons.
As to the father I repeat what I have said elsewhere in these reasons.
I generally accept the evidence of the mother, Dr H, Mr D, Ms O, and Ms R and simply repeat what has been said earlier in these reasons.
(k)any family violence order that applies to the child or a member of the child’s family, if:
(i) the order is a final order; or
(ii) the making of the order was contested by a person;
I have had regard to the violence during the marriage, both physical, verbal, emotional and psychological brought onto the mother and the children of which the father has incomplete understanding.
I have had regard to the violence imposed upon the mother’s nieces and the broader effect on the family.
There is a Family Violence Order in place which will continue for some years. I will put in place an order restraining the father from having any face to face contact or direct communication with the children.
Counsel for the mother sought an order enabling the arrest of the father without warrant if he approaches the children. Having regard to the orders I have put in place and the Family Violence Orders and notwithstanding the father’s breach of those orders in December 2006, I am, in all the circumstances, satisfied that they are sufficient at this time and provide protection to the children and the mother. It would seem to me that further orders under s 68 or orders for the arrest of the father without warrant goes beyond what is reasonable in the current circumstances.
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
I had contemplated whether I ought to exercise jurisdiction under Division 12A, not to prevent the father from commencing proceedings but to require him firstly to go through the dispute resolution requirements under s 60I of the Act and then require him to satisfy a Family Court Judge or a Federal Magistrate that there was some basis to his case before joining the mother.
In his evidence the father saw the sending of letters, cards and presents as the commencement of the process of being able to spend time with his children. I wish to make it absolutely clear in these reasons that it is not my intention [emphasis added] that this be the start of that process.
The father has committed abominable acts to his own child and other children. I see no process where it ought to be considered in the children’s best interests that he have any face to face or other direct communication with them other than what is provided in these orders.
Having regard to the evidence and the discussions contained in these reasons I propose for some contact between the father and the children. However, it is not in any way for the benefit of the father but rather to address the issues raised by Dr H and for the children, particularly the younger two, to know that they have not been rejected by their father and to address the broader issues that Dr H dealt with in her evidence.
Having regard to the provisions contained in Div 12A of Part VII of the Act I will require that either party to firstly comply with s 60I of the Act before proceedings are commenced. With regard to the father I am concerned that he will endeavour to come back to court sooner rather than later to pursue direct contact with the children. Section 60ZN sets out the principles in terms of child proceedings. They include the need to consider the impact of the conduct of the proceedings on the children. If the father seeks to commence proceedings in the next four years I propose to make orders requiring him to have the matter first listed before a court so that the mother (and consequently the children) are not disturbed if the change of circumstance is of a rhetorical or minor sense.
Section 60CC(4) of the Act
(4) Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child's parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child's parents:
(a)has taken, or failed to take, the opportunity:
(i)to participate in making decisions about major long‑term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child; and
(b)has facilitated, or failed to facilitate, the other parent:
(i)participating in making decisions about major long‑term issues in relation to the child; and
(ii) spending time with the child; and
(iii) communicating with the child; and
(c)has fulfilled, or failed to fulfil, the parent's obligation to maintain the child.
(4A)If the child's parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.
I have had regard to the events that have happened and the circumstances that have existed since separation occurred 12 November 2006.
In coming to the conclusions in these proceedings I have reflected on all of the evidence to consider the extent to which the children’s parents have fulfilled or have failed to fulfil their responsibilities as parents as set out in s 60CC(4). In having regard to all of the material before me and all of the findings of fact I determine that in my view the best interest of the children are served by the orders set out at the commencement of these reasons.
Nothing new arises out of the considerations of the matters in s 60CC(4) and (4)(A) which have not already been discussed in detail in these reasons. I have dealt with almost all of those issues in these reasons so far.
The emotional welfare of the mother
The mother has a robust personality and has, with great assistance and great fortitude (to her credit) worked through these devastating events. She has continued to parent and ensure that these children have as best an upbringing as she could possibly provide.
The mother has serious doubts about the rehabilitation of the father and considers that her children are and remain at risk by him. However, she is pragmatic enough to know that her children, particularly her younger children, may be inquisitive about their father in the future.
With the limited and highly controlled contact that I have proposed in terms of letters and cards etc I am confident of two things, firstly the mother will not be happy with the outcome but she will manage the outcome and secondly, it will not significantly or adversely affect her ability to parent these children.
In terms of the need for the contact I am not putting in place any arrangements to meet the needs of the father. The whole of the arrangements that I am putting in place are to meet the needs of the children and address the concerns raised by Dr H in her oral evidence. I make this clear so as to hopefully dissuade the father from taking any further action in the years to come to spend face to face time or communicate directly with his children.
The evidence at present is that such a step would be highly disruptive to the family and would have significant impacts on the children, not the least of whom is E who has expressed to her counsellor her fears of being forced to see her father and has expressed strong views to the contrary.
In terms of letters I will permit the father to write to the children twice a year, once at the beginning of April and once at the beginning of October. Those letters will be monitored by the mother or any other responsible person she nominates. To that end I note that Laurel House may be able to assist from time to time. Any letters that contain questions, are seen as grooming the children, or in any way endeavour to offer a benign explanation for the father’s culpability will be returned.
The remainder of the letters are to be retained by or on behalf of the mother. They will be available for the children to read as and when they wish to read them.
The letters will be retained for the time being for a period of at least twelve months so that the counsellors at Laurel House can spend time with E to ensure that she knows that the letters do not pre-suppose a reply and there is no requirement on her to either read the letters or reply to the letters. It will give the counsellor time to make it clear to E that it is “ok” for her to reject the letters and indeed the cards.
To make it clear only one letter can be sent each six months which should be available for all of the children to read. The delay of almost twelve month time in the communication commencing will also enable any counselling which may be necessary to ensure that the younger three children are also aware that there is no requirement or implicit or explicit pressure upon them to reply. Nor is there any requirement upon them to read the letters or, in the case of the younger children, have the letters read to them.
I intend for cards to be sent to the children for Christmas and for their respective birthdays. This is not to occur until Christmas 2010 and then for birthdays and Christmases thereafter. The same condition will apply to the cards in terms of having them read by the mother or someone on her behalf.
The Independent Children’s Lawyer said that presents ought to be able to be sent with the cards. In her evidence the mother said that the presents when they arrived would be a constant reminder of the influence of the father and what he had done. Having regard to the evidence the likelihood is that if presents are sent they are almost inevitably going to be rejected by E, they may or may not be rejected by N and are likely to be accepted by the younger children. If the father were to send presents to T it is likely that they would be rejected. The sending of the presents has the capacity to create significant division within the household. It may well be a potent reminder to E of the breach of trust and the position once held by the father as his “little princess”.
Accordingly having regard to all of the facts and circumstances and the impact that this could have on the home I will not give permission for the father to send presents.
The father has sought orders that he be informed as to any significant illness or injury to the children or any one of them. I am inclined to make that order, not for the sake of the father but simply so that the children know that the father will be aware of any significant illness or injury. I will not require the mother to immediately notify the father of any such events for I do not want the mother to have to deal with a very injured or very sick child and then have the father turn up to a hospital claiming some sort of parental rights. The mother may notify the father but can do so after the event. The mother should do so in writing and the illness or injury must be relatively significant.
The final issue is the question of whether the children’s school photographs and school reports are to be sent to the father. Initially the mother thought the father would be receiving newsletters and the like and was upset at that thought. Having regard to the father’s conduct and to the father being placed on the Register of sex offenders, I do not consider it appropriate for school newsletters and information to be provided to the father.
However so that the children know the father is interested in their educational achievements I will make orders that the father be provided with the children’s school reports (generally two a year) until such time as each of the children attains the age of thirteen. At that time the children will have the option of expressing to the mother their desire that their school reports are not to be sent to the father. If that is the wishes of the child then the report would not thereafter be sent.
I will make a similar order in relation to the provision of the children’s school photos to the father for the same reason. This would be on the basis that the father pays for the photographs. I make it clear that the father will need to enter into these arrangements with the school but in circumstances where he does not attend the school. He will need to do so in writing and arrange for payment without attending the school to prevent him inadvertently meeting up with the children.
The mother seeks very strong injunctive orders under s 68 and also an order that the father be arrested without warrant if he approaches the children at their school or at their home.
I am aware that there is in place a Family Violence Order providing protection for the mother and the children. There is no evidence that since the events of December 2006 the father has approached the children either at their home or their school.
Counsel for the mother suggested this is related to the factual situation in Maluka and Maluka [2009] FamCA 647. There are significant differences in this case. In this case the father has undertaken counselling for some years and his counsellor’s evidence is that the father is making progress. In evidence the father has acknowledged some levels of culpability and there is no evidence of further threats since the events of 2 December 2006.
Further, whilst the father’s conduct in terms of violence, prior to November 2006, could be described as “oppressive controlling” or “controlling abusive” in this case the mother has been quite strong and robust in her defence of herself and her children.
The mother sought an order that the father not communicate or spend time with the children. Having regard to the matters set out in these reasons, including the father’s lack of insight, previous disregard of court orders and his benign view of his behaviour I am satisfied that such an order should be made including an order that the father not approach within 200 metres of the children’s place of residence and school/s.
Having regard to the impact of the father’s conduct on the children, including the mother’s evidence of her distress I conclude that it would be in the best interest of the children for their respective health care professionals and School Principals to have access to these reasons and the report of Dr H. I do not need to be prescriptive in this regard as the mother has displayed good sense in her care of the children and I conclude that she will make such material available when and if it is necessary to meet the needs of the individual children.
Counsel for the mother referred to the comment of the Full Court in the matter of Sedgley & Sedgley (1995) FLC92-623 where the Full Court said at 82, 259:-
Whilst the welfare of the child might require some continuity of contact with the non-custodial parent, the need for peace and tranquillity in the custodial parent’s household may be a more compelling need for the child.
The Court went on at page 82, 260 to say:-
The decision to cut the relationship between the parent and the child is one which ordinarily the court takes only with considerable hesitation.
Counsel for the wife also referred me to the comments of Purdy J in Grant & Grant (1994) FLC 92-506 where at page 81, 259 he said:-
If the Court comes to the conclusion that an access order will have the effect on a custodial parent which will impair to a significant degree the emotional support for that, and for that matter physical support, which the custodial parent can render the child, then the court must take that into account in assessing whether the access is for the benefit of the child.
He also took me to the comments of the majority of the Full Court in B & B (1998) FLC 91-957 where at page 924:-
That any benefit to the child in access taking place should not be outweighed by the disadvantages to the child including a risk that the child’s relationship with the custodial parent might be undermined by the conduct of the non-custodial parent during access periods.
In this case however the amount of communication which is envisaged is to a very limited extent. It is the light on the porch so that the children can in years to come, should they wish, have some understanding of their father. It is not in any way to create a relationship between the father and the children but merely to enable the children to have that information to prevent the concerns which were articulated by Dr H.
From the evidence of the mother I am satisfied this will have a detrimental impact on her. However, weighing that impact against the need to protect the children from psychological or emotional disturbance as were the concerns articulated by Dr H I am satisfied that such limited communication should take place.
Counsel for the mother said it would have a catastrophic effect on her. I am not satisfied, on the evidence of the mother, Dr H, or her counsel that it would.
The mother was receiving support and strong support from her counsellors at Laurel House.
Having regard to all of the facts and circumstances of this matter, and having considered the relevant facts under s60CC I determine that the orders the parties entered into by consent are appropriate and protective of the children. I also determine that the limited communication sought by the father and supported by the Independent Children’s Lawyer is, on balance, in the best interest of the children, or each of them.
I need to make clear that these orders are not designed to assist or facilitate any part of the father’s life. The underlying thrust of the orders is that they are made for the children and are to enable them, if they wish, to have some knowledge of their father and to prevent or inhibit more emotional or psychological damage being inflicted upon them. The orders are not about the father or his “rights” they are about the children and their needs. The order that the father be informed of sickness or illness is not for his benefit but so that the children know that they have not been rejected. The limitation on commencing proceedings is not designed in any way to encourage the father to commence proceedings after that time. It is put in place to give the children some relief from litigation and the consequent court dates that they have endured since November 2006. From the children’s point of view, the respite from litigation provided to them when the father was incarcerated, was relatively short.
I certify that the preceding two hundred (200) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin
Associate:
Date: 11 March 2010
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Consent
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Procedural Fairness
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