EASTELL & EASTELL
[2018] FCCA 608
•29 March 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| EASTELL & EASTELL | [2018] FCCA 608 |
| Catchwords: FAMILY LAW – Parenting – father seeking an order which will permit him to spend time with his daughter aged 9 – where two years ago the father pleaded guilty to filming his 14 year old step-daughter through the bathroom window - where the father has spent no time with his daughter since September 2015 – where the father appeared at trial to be postulating that he may not have committed the offence at all and that perhaps the mother had manoeuvred him into pleading guilty to something he did not do - where the father maintained that in any event he was not a paedophile and that his daughter would be at no risk of harm in his care – where it was the mother’s case that the child would be at unacceptable risk of harm in the father’s care – mother seeking a no-time order – where the court is satisfied that the child would be at unacceptable risk of harm in the father’s unsupervised care upon reaching puberty – where for a number of reasons, including the impact on the mother of an order for time, the lack of benefit to the child in starting unsupervised if it will either cease or become supervised in the future, and the difficulties inherent in an order for long term supervised time the preferred order is for no time and no communication. |
| Legislation: Family Law Act 1975 (Cth), ss.60CC, 61DA |
| Cases cited: Johnson & Page (2007) FLC 93-344 |
| Applicant: | MR EASTELL |
| Respondent: | MS EASTELL |
| File Number: | NCC 2804 of 2015 |
| Judgment of: | Judge Terry |
| Hearing dates: | 9, 10, 15 & 16 May 2017 |
| Date of Last Submission: | 16 May 2017 |
| Delivered at: | Newcastle |
| Delivered on: | 29 March 2018 |
REPRESENTATION
| Counsel for the Applicant: | Ms Ryan (Direct Brief) |
| Counsel for the Respondent: | Mr Rugendyke |
| Solicitors for the Respondent: | MRM Lawyers |
| Solicitor Advocate for the Independent Children's Lawyer: | Ms O'Rourke |
| Solicitors for the Independent Children's Lawyer: | Legal Aid NSW Newcastle |
ORDERS
All previous parenting orders concerning [X] born (omitted) 2008 (“the child”) are discharged.
The child shall live with the mother.
The mother shall have sole parental responsibility for the child.
Except with the consent of the mother which is to be recorded contemporaneously in writing (by text message or otherwise) the child shall spend no time with and have no communication with the father.
The mother shall promptly inform the father should the child be injured in an accident requiring admittance to hospital or be diagnosed as suffering from a life-threatening medical condition.
IT IS NOTED that publication of this judgment under the pseudonym Eastell & Eastell is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT NEWCASTLE |
NCC 2804 of 2015
| MR EASTELL |
Applicant
And
| MS EASTELL |
Respondent
REASONS FOR JUDGMENT
Introduction
The issue in dispute in this case is whether an order should be made for [X] aged 9 to spend time with her father.
Until 8 March 2015 [X] was part of a happy family unit comprising her mother, father and her older step-sisters [A] and [B]. That ended on 8 March when [A], then 14, caught the father either filming or attempting to film her through the window when she was naked in the bathroom.
[A] screamed and alerted the mother, the incident was reported to police, the father was charged with a number of offences and the mother and father immediately separated.
In May 2015 the father pleaded guilty to one charge of filming a person in a private act without consent, aggravated, and the remaining charges were dropped.
The mother facilitated [X] spending some limited supervised time with the father between March and September 2015 but that then ceased and in October 2015 the father filed an application seeking orders that [X] spend unsupervised time with him on weekends and during school holidays. He also sought an order for equal shared parental responsibility.
At trial the father sought the same orders but said that he was willing to agree to a short period of supervised time by way of re-introduction.
The father ran a confused case at trial about his culpability for the 8 March 2015 offence. He seemed largely to veer away from any acceptance that he had done anything wrong and to veer toward the view that he had been set up by the mother and should never have pleaded guilty.
On the assumption that he had done something wrong, his case was that the incident was a one-off incident which occurred due to mental health issues and alcohol abuse. He said that he had been abstinent since the incident and that there was no risk of [X] coming to harm if she spent unsupervised time with him.
In the response the mother filed in 2015 she proposed on both a final and an interim basis that [X] spend supervised time with the father.
No interim order was ever made for supervised time, initially because for the father would not agree to it, and by the time of trial the order sought by the mother was that [X] spend no time with the father.
It was the mother’s case that the 8 March 2015 incident was not the only occasion when the father had crossed the boundaries with [A] and that looking back on various things which had happened she feared that he had been grooming [X] and [B] prior to separation. She submitted that [X] would be at unacceptable risk of harm if she spent unsupervised time with the father and that there was no benefit to [X] in the court making an order for long term supervised time.
It was also the mother’s case that now that she had had time to reflect on things she would find it very difficult to foster a relationship between [X] and the father.
The Independent Children’s Lawyer supported a no time order. She submitted that [X] would be at unacceptable risk of harm if she spent unsupervised time with the father once she entered puberty and that there was no point in starting time and then either stopping it or having it morph into long term supervised time. She proposed however that the mother be required to encourage [X] to have telephone and FaceTime communication with the father once a week and that the father be permitted to send letters, cards and gifts to [X] and the mother be required to pass them on to her unopened.
I apologise for the delay in the delivery of this decision. 2017 was a difficult year in the Newcastle Registry and to my enormous regret I was not able to get to all my judgments in a timely fashion.
The evidence
The father relied on his amended initiating application filed on 24 April 2017, his affidavit filed on 19 April 2017 and the affidavit of a psychiatrist Dr G also filed on 19 April 2017
The mother relied on her amended response and affidavit filed on 13 April 2017 and the affidavit of her partner Mr P also filed on 13 April 2017.
A Family Report was prepared by Mr N, a Regulation 7 Family Consultant who conducted interviews in September 2016.
Mr P was not required for cross-examination but all of the other witnesses were cross-examined.
I received a number of exhibits during the hearing, including a very useful tender bundle, and I have taken those exhibits into account.
Background
The mother is 47 and the father 36. They met and formed a relationship in 2005 when they were (employment omitted) in (omitted). They have one child, [X], who was born on (omitted) 2008 and they married in (omitted) 2008.
The mother has two children from a previous relationship, [A] born on (omitted) 2000 and [B] born on (omitted) 2003. They were about four and two when the relationship between the parties commenced and lived with the parties throughout their relationship.
Fairly early in their relationship the parties moved from (omitted) to (omitted) where the father’s parents and other members of his family live. They purchased a home in (omitted) and at the time of the offence they were (employment omitted) at the same (employer omitted).
There were no problems in the parties’ relationship prior to 8 March 2015. The submission in the father’s case outline document that the relationship had broken down in the period from late 2014 to early 2015 is not correct. The correct submission is the one made later in the Case Outline document which is as follows:
After being together happily for a period of over ten (10) years the parties separated solely because of this incident on 8 March 2015.
The 8 March 2015 incident
The evidence about the 8 March 2015 incident contained in the statement of agreed facts which was handed up when the father pleaded guilty is as follows:
a)Shortly after 8pm [A] aged 14 was having a shower in the downstairs bathroom. She was alone and naked in the bathroom when she looked toward the bathroom window which was partially open and had no flyscreen. She saw a mobile phone in the bottom corner of the window so that it faced the shower. She saw that the phone was being held and the phone camera operated by the thumb of the hand which held the phone.
b)The mother was upstairs and heard [A] screaming. [A] screamed out “Is there someone out there? Is that you Mr Eastell? Did you just take a photo of me?” The mother went to the bathroom and found [A] hysterical and standing with only a towel on her. [A] told her mother she thought the father had just taken a photo of her.
c)The mother confronted the father who admitted that he had taken a photograph on his phone of the child in the shower. The mother asked him to leave and he did so. The mother went to [A]’s bedroom and found her sitting upright in the foetal position on the floor.
d)The father telephoned a friend who was also a (occupation omitted) and told him that he had been caught filming his daughter [A] in the shower. The friend reported the matter to the school principal.
e)The police were called and investigated. The father’s mobile phone was seized but no relevant photos were found on it.
f)The father declined to be interviewed and was charged.
The mother gave a statement to police on 10 March 2015 in which she recounted conversations she had with the father immediately after the incident. She included information about these conversations in her trial affidavit but that information differs slightly from the information in her statement. Referring to her statement the salient parts of the conversations were as follows:
Mother: What the fuck?
Father: I did do it.
Mother: Is that why you came outside to take (omitted) (our dog) to the toilet?
Father: Yes. What happens now? Are you leaving me?
The mother said that the following conversation also occurred:
Mother: Have you been doing this all the time you take (omitted) to the toilet?
Father: Two or three times. The first time was an accident. There was a hornet’s nest. The first time I was spraying it I saw [A] in the shower.
In May 2015 the father pleaded guilty to filming a person in a private act, aggravated. A final ADVO was made for [A]’s protection for 2 years and the matter was adjourned for sentencing.
The father had commenced seeing a psychiatrist Dr J after the incident. Dr J prepared a report for the court and in August 2015 the father was convicted of the offence and sentenced to 200 hours community service.
The father did not express any doubt about his culpability for the offence when he spoke to Dr J. He admitted that he had stood on the bench outside the window of the bathroom and held his camera up. He said that he was worried about what might be on the camera. He said that what happened was an impulsive drunken act for which he was ashamed and shocked. The father accepted his sentence and he commenced doing his community service.
The father’s time with [X] in 2015
The mother agreed to the father continuing to see [X] after the incident and began facilitating him spending time with her about once a week in a park at (omitted) for about an hour, during which she remained present. In April 2015 she agreed to [X] communicating regularly with the father by Facetime using her iPod.
In September 2015 the mother agreed to [X] attending a Father’s Day lunch at the home of the father’s brother and his wife and [X] spent about three hours there. She also agreed to [X] spending some time with the father on one occasion in September 2015 supervised by the paternal grandparents.
However, later in September the mother went to the paternal grandparents home to ask the father to sign a passport application for [X]. She was in the process of organising a trip to the (country omitted) to visit her family for Christmas and when the father would not agree to sign the application on the spot she became very angry and abusive and called the father and his family names such as “(omitted) cunts” and “white trash”.
Around this time the mother also sent the father text messages accusing him of being a paedophile and the father applied for an Apprehended Domestic Violence Order (ADVO) and told the mother that he did not feel safe meeting her in person.[1] The mother in turn said that she could not meet the father because of the ADVO and all time between the father and [X] ceased.
[1] The father later withdrew the application for the ADVO
The commencement of proceedings in this court
On 26 October 2015 the father filed his application for parenting orders and on 15 December 2015 the mother filed her response.
An order was made in December 2015 for the father to have telephone or Facetime communication with [X] but despite the mother’s proposal that [X] spend supervised time with the father no order for supervised time was made.
In her response the mother proposed that supervised time take place at (omitted) Children's Contact Centre and at a mention of the matter on 11 March 2016 she raised the possibility of the father spending time with [X] supervised by Rekonnect which provides accredited supervision outside of a contact centre. However the father would not agree to see [X] supervised. The following notation appears on the 11 March 2016 orders:
The court indicated that it would be prepared to make orders about the father spending supervised time with the child provided by a professional supervisor. The father is not prepared to agree to these orders so the court has made no orders about him spending time with the child.
The father’s criminal appeal
After his sentencing in August 2015 the father began seeing a different psychiatrist, Dr G, and in due course he filed an appeal in the District Court against his sentence. Dr G prepared a report for the appeal in which he expressed the view that at the time of the offence the father was suffering an alcohol induced psychosis.
The appeal was heard by Judge North on 20 May 2016.
The father’s primary position was that the matter should be dealt with under s. 32 of the Mental Health (Forensics Provisions) Act. The Crown opposed this and Judge North declined to take this course.
The father’s secondary position was that the court should deal with the matter without conviction and Judge North agreed to do this.
The father made some very selective comments about the appeal decision in his affidavit, and in closing submissions his counsel was critical of the fact that [A] did not provide a victim impact statement, and it is therefore important that I include in my judgment the following passage from Judge North’s decision:
I do accept the Crown submission that this is an offence of a sexual nature, without having any physical contact of course, but it also involves the 14year old step-daughter of the accused, so it is a grave breach of trust, it obviously affected the victim because she was found in a foetal positon on the floor and, as I understand it from the appeal and the evidence, this has resulted in the breakdown of his marriage. Also the appellant pleaded guilty to the agreed facts which set out that he, at the time, although perhaps affected by alcohol at the time (which I will not take into account) he knew that what he had done was wrong because some time later he telephoned a fellow (occupation omitted), who then, quite rightly, reported the matter.
In all the circumstances I therefore do not propose to deal with the matter under s. 32 but will deal with it in accordance with the law.
Mr R’s secondary position was that if he was unsuccessful in having the matter diverted pursuant to s. 32, then he would ask the court to deal with the matter without conviction.
I would not have acceded to this request were it not for the fact that this former (occupation omitted) immediately on being sentenced to 200 hours community service managed to complete 80 hours before his appeal was lodged and that, of course, stayed the completion of any further hours.
In addition, I take into account that he is at low to moderate risk of offending. That is set out very clearly in the reports. I take into account that he has nil criminal record and has reached the age of 34 with only this one blemish.
I do accept the Crown case that it is quite objectively serious but due to the consequences that involve the loss of a professional career and the unlikelihood of ever being able to return to it, combined with the equally, if not greater, loss of one’s family, lead me to feel that this is a case in which I can extend the leniency inherit in s. 10. However, the s. 10 will include a quite lengthy bond so that we can see that the offender will continue to remain law abiding and will continue to seek whatever appropriate treatment he needs.
The mother attended the appeal hearing and was upset about the outcome. In her trial affidavit she said that she had not yet told [A] that the father’s conviction had been set aside.
Events between the criminal appeal and the commencement of the hearing
In September 2016 the father indicated that he was willing to spend supervised time with [X] but by then the mother would not agree to it and no order for it was made; instead the matter was listed for final hearing.
The father continued to have Facetime or telephone communication with [X] until late February 2017 although he said that after December 2016 it became very infrequent. Facetime ceased in March 2017, according to the mother because [X] did not want to keep doing it, and when the trial commenced in May 2017 the father was spending no time with and having no communication with [X].
The factual issues which require determination
The following factual issues require determination before I progress to considering [X]’s best interests:
i)The findings the court can make about the 8 March 2015 incident.
ii)Whether there were any other incidents in relation to [A].
iii)Whether the father engaged in grooming behaviour in relation to [X] and [B].
The findings the court can make about the 8 March 2015 incident
The father expressed no doubt at all on the night of 8 March 2015 or immediately afterwards about what he had done. He told Dr J that he had committed an impulsive act while under the influence of alcohol and expressed concern about whether photographs might be found on his phone.
The father also told Dr G that he remembered holding his camera up and when Dr G was asked in cross-examination if the father said anything to indicate that he had any doubt about what he had done he replied:
He had no doubt until then but when I took him through the history some doubt arose.
Dr G pointed out to the father that based on photographs he had seen of the outside of the house, the father would not have been able to reach the bathroom window standing on a bench and would have needed to stand on a ladder.
In the report Dr G prepared for the father’s District Court appeal he said as follows:
At the time of the offence it is clear that Mr Eastell was intoxicated. The history he gave me of the events was confabulatory. He had indicated to other people that he had taken photos with his phone because he thought that was what he must have done; by the time he saw me he was aware that he had not taken any photos. He told me he had intended to take photos; however on close questioning he told me he did not know what he intended to do, and did not even realise what was happening until step-daughter called out, whereupon he jumped off the bench and realised he must have done something wrong.
In his trial affidavit the father gave conflicting accounts about his acceptance of culpability for the offence to which he pleaded guilty. Initially he said as follows:
We separated on 8 March 2015 after an incident at home when I was drunk and attempted to photograph [A] who was in the shower.[2]
[2] Father’s trial affidavit paragraph 9
Later in the affidavit he said as follows:
I state that this offence was an isolated incident which was totally out of character for me and I have very little independent memory of this night as I was very drunk.
I was very upset, sorry and remorseful and pleaded guilty so as not to cause any further harm to my family as Ms Eastell had asked me to do. (my emphasis)
This suggests some doubt about what he had actually done and repeatedly during cross-examination the father gave answers which suggested that he may not have done anything wrong at all. His answers included:
When I pled guilty I assumed that I’d done it. It wasn’t until I started seeing Dr G that I thought that it was possible it didn’t happen.
………..
I look at it now and think it’s highly possible that nothing ever happened.
…………………………
I was remorseful when I thought I’d done it.
…………
(When asked whether the mother fabricated evidence)
I think it’s possible.
The father was not able to suggest why the mother would have made a false allegation against him except possibly for financial gain and confusingly (and this would be extremely confusing for [X]) one of his answers in cross-examination was as follows:
If [X] says Dad did you film [A] I would say yes
How far the father’s thinking about the incident has shifted since March 2015 is illustrated by considering the following passage from Dr J’s report:
In consultations, Mr Eastell indicated his understanding of the severity and nature of his offending behaviour. He stated his understanding that it was aggravated sexual behaviour against a 14 year old victim. He emphasised his need to find answers for his behaviour. He noted he was “pretty drunk” because he had started drinking at 3pm and the offence took place at 8.30pm. He did not offer this as an excuse and offered no excuse for his behaviour.[3]
[3] Dr J’s report paragraph 37
By the time of trial the father has not only moved to a positon where he intermittently questioned whether he had done anything at all, but where he mounted a full scale attack on the mother, accusing her not only of possibly lying about what occurred on 8 March 2015 but of cheating him in the property settlement, lying to the Child Support Agency about her income and making false allegations of abuse against her former husband.
I do not accept the father’s obfuscation or denials. His case that the mother maliciously invented the allegations or beat up the incident to be much worse than it was is impossible to credit against the background of the parties’ relationship. They were not having marital issues prior to the incident and were not considering separating. Neither party was having an affair. What possible motive could the mother have for “framing” the father or fabricating allegations? It is clear that the mother really struggled to understand after the incident occurred why the father had behaved in that way and canvassed the idea that he might have a brain tumour.
The statement in which the mother recounted conversations with the father was made only two days after the incident when she could be expected to have a good recollection of what occurred and the father did not dispute during cross-examination the validity of many elements of those conversations.
He did not dispute that there had been an issue with wasps (or hornets) prior to the 8 March incident. He did not dispute that he used a ladder when removing the nest although he said it was a step ladder. He did not dispute that the flyscreen was removed from the bathroom window in the course of him dealing with the wasps.
He did not dispute that the parties had a dog called (omitted) and that he had developed a practice of taking (omitted) outside of an evening for the purpose of ensuring that she went to the toilet (he said at trial that it was because she was old).
It did not seem to be seriously in dispute that he was outside at about 8.00pm on 8 March 2015 or that [A] screamed.
The fact that no photos were ultimately found on the father’s phone does not establish that the father did not intend to take photographs or attempt to take photographs, and there is reason to be suspicious about whether there may at one time have been photographs.
One of the police officers who attended on 9 March 2015 said in his statement that when the father was asked to hand over his phone he was also asked if he had deleted any images or videos from the phone and he replied:
I don’t want to answer that question
In Dr J’s notes the father is reported as saying:
I deleted the film straight away
I am really stressing about the police finding the footage.
I do not accept that nothing happened on 8 March 2015 or that the mother has embellished or exaggerated what happened. I accept unreservedly that the offence occurred as set out in the police statement of facts and that the mother’s account of her conversations with the father that night which are contained in a statement she gave to the police two days after the incident are accurate.
Whether there had been any prior concerning behaviour by the father toward [A].
The mother alleged and I accept, that the father admitted that prior to 8 March 2015 he had engaged in similar behaviour two or three times, although I cannot make findings about exactly what happened on those other occasions.
The mother also alleged that in hindsight, there had been other occasions where the father behaved in ways which suggested an unhealthy interest in [A]. She alleged that he walked in on [A] naked on four or five occasions and apologised saying that it was an accident. She alleged that on three separate occasions on family holidays he walked in on [A] when she was getting changed and apologised each time saying that he didn’t realise she was getting changed.
I do not accept that the mother (maliciously or otherwise) gave false evidence at the hearing, but I cannot place weight on her evidence about these alleged past events. They did not cause the mother unease at the time and I cannot dismiss the possibility that her recollections are faulty or are coloured by the effect on her of the incident on 8 March 2015. I cannot place weight on that evidence as suggesting that the father had an unhealthy interest of long standing in [A].
I do not accept that the incident on 8 March 2015 was an isolated incident but I cannot find that there had been other problematic behaviour by the father in respect of [A].
Whether the father engaged in grooming behaviour in respect of [B] & [X]
It was the mother’s case that prior to 8 March 2015, a number of things occurred which she did not attach significance to at the time but which in hindsight troubled her and led her to believe that the father had been grooming [B] and [X]. She said that:
i)When [B] was 4 the father left pornography playing on the computer which [B] saw.
ii)The father repeatedly told [X] how cute she looked in her “boy leg undies” and said they were his favourite and he was going to buy her some more.
iii)Ever since [X] was little the father had insisted that she sleep in the parents bed and on the father’s side of the bed.
iv)In October 2014 when she stayed with [B] in hospital the father had [X] sleep in his bed rather than her own bed.
v)In or around December 2014 or January 2015 when the mother father and [X] were watching a movie, [X] put her hands in her underwear and then took her hands out and licked her fingers and said “this is a yummy treat isn’t it Daddy.” The mother said that she thought it was strange and out of character at the time.
The father’s counsel submitted that I should not have any regard to these allegations because the mother did not mention them to the police when she made her statement on 10 March 2015. In her written submissions, she went so far as to request that the court refer the police to the fact that the mother was now making these allegations.
During oral submissions, the father’s counsel insisted that she had not made this request because she wanted the mother punished. She can hardly have wanted the father investigated for having committed further offences and the purpose of this request remains unclear to me unless it was to simply emphasise her view that in making the additional allegations the mother was lying.
To emphasise further her point that the mother was lying the father’s counsel submitted that the mother had admitted during cross-examination that she had training in what grooming entailed and that if the father had been engaging in grooming behaviour before 8 March 2015 the mother would have recognised it for what it was.
Finally she said that the mother’s description of what happened when the mother, father and [X] were watching a movie should be disregarded because there were three separate versions of events about it: the mother saying that [X] put her hand in her pants; the notes taken by the Department of Family and Children’s Services referring to [X] putting her hand in her bottom; and Mr N referring to the incident as masturbation without describing with more precision what he had been told about it.
The Independent Children’s Lawyer made a similar submission in respect of the movie incident.
To deal with these points in reverse order, as I observed during submissions the three separate descriptions of the movie incident are not necessarily inconsistent, especially if one factors in that the notes people make when they are given information are not always a verbatim recording of what is said; sometimes people use words which describe what they have heard or what they believe an incident means and they may not always choose their words with precision.
I am not convinced that the fact that the mother had some training years ago about grooming necessarily means that she would have recognised the process occurring in her own family. Grooming is an insidious process. It involves getting people used bit by bit to an invasion of boundaries. The mother thought that she was happily married and would not have been on the alert for grooming behaviour.
The mother said that she did not mention the earlier events when she gave her statement to the police either because she still had feelings for the father and did not want him to go to jail, or because she did not immediately make a connection between the behaviour she had observed in the past and the incident on 8 March 2015 and only came to consider the past incidents significant as time went by.
The father’s counsel said that it was not credible that the mother wanted to be protective of the father immediately after 8 March.
I do not accept this and consider that the mother’s explanation for why she did not mention these incidents in her statement to the police is credible.
However while I do not consider that the mother lied in giving this evidence, I also do not feel that I can place any weight on it.
There is no guarantee that the mother accurately remembers the details of the incidents. She did not make notes about them at the time and there is a considerable risk that her recollections might be coloured or influenced by what occurred on 8 March.
In addition even if all the events occurred exactly as described they are all, even the movie incident, capable of either innocent explanation or an explanation which does not involve culpability by the father. I cannot find on the basis of this evidence that the father engaged in grooming behaviour in respect of [B] or [X] prior to the 8 March 2015 incident.
Post-separation events with [X]
The mother said that there were two post-separation events which concerned her namely:
i)After the parties separated in March 2015 [X] contacted the father using Facetime on her Ipod. When the mother asked to see [X] said “No, I can have secrets with Daddy.”
ii)In April or May 2015 she observed that [X] was using her Ipod to take photographs of herself in the bath. She said to her words to the effect of “[X], little girls don’t take photos of themselves in the bath.”
I cannot do much with the comment about secrets but the father did not deny that [X] took a photo of herself in the bath and sent it to him. It was of her feet and there is nothing in the photo itself to arouse concern, but the fact that it happened and that the father cannot see how in the context of the allegation to which he pleaded guilty it arouses suspicion troubles me greatly.
The mother was present when the incident with [A] happened. She heard [A] screaming and found her in a foetal position. She is justifiably worried about what might happen to [X] in the future and is likely to be hypervigilant for signs that the father is behaving inappropriately with [X].
Against the background of what happened to [A], the mother is entitled to be concerned about [X] taking photographs of herself in the bath. The fact that the father cannot see why it would concern the mother illustrates if nothing how easily this matter could come unstuck and return to court if an order is made for unsupervised time to occur.
The parties current circumstances
The parties settled their property matters fairly soon after the father commenced court proceedings. The former matrimonial home in (omitted) was transferred to the mother but she subsequently sold it and now lives at a different address with [B], [A] and [X].
The mother continues to (employment omitted). She is in relationship with Mr P. She described him as her partner but at the time of trial he was not living with her.
The father moved in with his parents after separation but by the time of trial he had purchased a new home. He has not re-partnered.
The father ceased work as a (occupation omitted) after he was charged. He initially earned income doing (employment omitted), something he had done as a side-line during the relationship. At the time of trial he was working for (employer omitted) as an (occupation omitted).
[X]’s best interests
Any orders I make about [X] must be orders determined by treating her best interests as the paramount consideration and s.60CC(2) and (3) of the Family Law Act contain the matters to which I must have regard in order to determine [X]’s best interests.
The primary considerations in s. 60CC(2) are the benefit to the child of having a meaningful relationship with both of her parents and the need to protect the child from physical or psychological harm from being exposed to or subjected to abuse, neglect or family violence.
Self-evidently, [X] will not have a meaningful relationship with the father if she does not see him or only sees him for limited periods supervised, and one of the issues in the case (although not the only issue) was whether [X] would be at unacceptable risk of harm if she spent unsupervised time with the father.
The father’s counsel submitted that [X] would not be at risk of harm in the father’s care. Her submissions on the topic were not always easy to follow but a chain of reasoning supporting this contention would be as follows.
There was a real possibility that the father had not committed any offence at all but assuming that he did, Dr J formed the view that the incident was an isolated incident which had occurred while the father was using alcohol excessively. In his report he listed factors which indicated that the father was at low risk of offending against children, including that he had been involved in a healthy adult sexual relationship with the mother, there was no evidence of past chronicity of sexual violence, minimisation or denial of his sexual offences or beliefs which supported or condoned them and there was no personal history of abuse.
Since that report was done the father has minimised or denied his culpability, and his statement to Dr J that he accepted that because he had offended he remained at risk of offending is no longer accurate, but apart from that the factors listed by Dr J remain relevant, and most importantly father has completely ceased using alcohol.
Dr G expressed the opinion that at the time of the 8 March 2015 incident, the father was suffering from Alcohol Induced Psychotic Disorder. On the assumption that the offence occurred, Dr G expressed the view during cross-examination that while [X] was pre-pubertal she was at no risk of sexual harm from her father and that upon her entering puberty the risk of harm was low as long as the father did not resume drinking.
In summary, the argument would be that the risk of the father committing a similar offence in respect of [X] was either non-existent because he had not committed an offence against [A], or if he had committed one, the risk was so low as to be acceptable as long as the father was not drinking.
I am satisfied that the father did commit an offence and the problem for the father in relying on the evidence of Dr J and Dr G that the offence is explicable or excusable because of alcohol consumption is that their risk assessments are based on an acceptance of the father’s self-report that it was a one-off incident, that it happened when he was heavily intoxicated and that it did not involve any pre-planning.
I accept however the mother’s account of her conversations with the father on 8 March 2015 which suggest that something similar had occurred two or three times previously in the days or weeks leading up to 8 March 2015.
It is open to question whether the father’s self-report about his level of intoxication is accurate. He was drinking heavily at the time and he had installed a keg in his home but the mother said that he cooked a roast dinner for the family that night and that he was not intoxicated to the point of appearing drunk, slurring his words or stumbling. I accept her evidence, and in addition the father’s assertion about his level of intoxication that night does not sit comfortably with the coherent text messages he sent in the aftermath to the incident.
Even if the father was heavily intoxicated, the conversations he had with the mother after the incident suggests that there was more to it than simply alcohol consumption, and while alcohol consumption may have removed some of his inhibitions, there is considerable force in the observation by the family report writer that it does not by itself explain the offence. The family report writer said as follows:
Whilst there may be some inconsistencies in the father’s account of what transpired around the offence, the reality is that he pleaded guilty and the Family Consultant has difficulty with the view that even if the father was allegedly intoxicated to the point where it impaired him in knowing what he was doing, that he would have committed such an offence, unless there was some pre-meditation.
Dr J said that the father never attempted to mitigate or excuse his offence and that further treatment would continue to explore the nature of understanding abuse by exploration of issues associated with the four conditions of child sexual abuse: motivation to sexually abuse; overcoming inhibitions; having the opportunity; and overcoming resistance of the child but the father has never had any further treatment.
The Independent Children’s Lawyer and the mother’s counsel both submitted that there was an unacceptable risk of [X] being exposed to harm in the father’s care if she spent unsupervised time with him although the submission of the Independent Children’s Lawyer was that the risk would only exist once [X] entered puberty.
I accept the submission of the Independent Children’s Lawyer. I am satisfied on the balance of probabilities that [X] would be at unacceptable risk of harm in the father’s care if she spent unsupervised time with her father once she entered puberty.
In Johnson & Page the Full Court referred with approval to a paper entitled “Unacceptable risk – A return to basis” prepared by the Hon. John Fogarty AM in which he set out a summary of the principles emerging from M & M.[4] He said among other things as follows:
[4] M & M (1988) 166 CLR 69
5 The concentration in these cases should normally be upon the question whether there is an unacceptable risk to the child.
6 The onus of proof in reaching that conclusion is the ordinary civil standard.
7 But the components which go to make up that conclusion need not each be established on the balance of probabilities. The court may reach a conclusion of unacceptable risk from the accumulation of factors, none or some only of which, are proved to that standard.[5]
[5] Johnson & Page (2007) FLC 93-344 paragraph 68
I am satisfied on the balance of probabilities that the father offended in relation to [A] as set out in the statement of agreed facts, and I am also satisfied on the balance of probabilities that the conversations the mother recounted occurred, and the factors which in my view make the risk of something similar happening in regard to [X] when she reaches puberty unacceptable are the very real possibility that the incident with [A] was preceded by impulses and planning and that the father has over time progressively sought to minimise his culpability for the incident and explain it away as the result of alcohol abuse rather than his own predilections and has not been willing to examine that aspect of his makeup. There was no evidence that he was engaged in therapy with Dr G which addressed that issue.
The incident of 8 March 2015 was abusive of [A] and caused harm to [A]. A similar incident would cause considerable harm to [X] and the risk of it occurring is a very hard risk to guard against except with close supervision in a controlled setting.
The father caused harm to [A] by furtive behaviour. It is not the kind of behaviour which can be guarded against by teaching a child self-protective strategies or simply by another adult being present in the house when a child is spending time with a parent.
[X] would not be at unacceptable risk of harm if she spent closely supervised time with the father not including overnight time but whether that would be of benefit to her is something I will have to weigh up after making findings about the additional considerations in s. 60CC(3).
The first of the additional considerations is any views expressed by the child and the weight to be given to those views.
There is evidence about [X]’s views in the family report.
When the family report interviews were conducted in September 2016, [X] had not seen the father for about twelve months but she was having Facetime communication with him and the family consultant said as follows about her views:
She did indicate however that she misses her father “at times” but generally she was “okay”. When I asked [X] if she had a magic wand and how she could make her life better, she replied by saying “I wish mum and dad didn’t break up”.[6]
[6] Family Report paragraph 54
Facetime communication ceased in March 2017 and the mother said that this was because [X] did not want to continue with it. She also said that [X] told her in March 2017 that she did not want to spend time with her father unless someone was there.
The mother was a calm witness who did not exude antipathy to the father. I accept her evidence about what [X] said to her in March 2017 but it is impossible for me to know the extent to which [X]’s views have been influenced by knowledge of the mother’s views.
The Independent Children’s Lawyer did not seek to put any information before the court in May 2017 about [X]’s current views.
I must consider the nature of the child’s relationship with each of her parents and any other person including a grandparent of the child.
[X] had a good relationship with her father prior to 8 March 2015 but she has no relationship with him at present.
The father’s counsel submitted that [X] had previously had a good relationship with her paternal grandparents. The mother did not dispute this. However [X] has spent very little time with the paternal grandparents since 8 March 2015 and does not currently have a relationship with them.
It was not in dispute that [X] had a good relationship with the mother.
There was no specific evidence about [X]’s relationship with her siblings but the unspoken assumption in the case seemed to be that it was a good relationship. One of Mr N’s concerns was the impact on the sibling relationship of [X] spending time with her father.
I must consider the extent to which each parent has fulfilled, or failed to fulfil, the parents’ obligations to support maintain the child.
This is not a relevant consideration.
I must consider the extent to which each parent has taken or failed to take the opportunity to participate in making decisions about major long-term issues in the relation to the child, to spend time with the child and to communicate with the child.
The father could have commenced spending supervised time with [X] in March 2016. He declined to do so and by the time he changed his mind in September 2016, the mother would not agree to supervised time commencing.
By the time of trial the father had not spent time with [X] for about 20 months. During that period the mother and her family had moved on and [X] has become used to not spending time with the father, and although the father may ascribe part of the blame for this to mother because after September 2016 she would not agree to supervised time, it appears from the family report interviews that this acceptance was setting in in September 2016 and the fact that no time occurred for the twelve months prior to that was largely down to the father.
I must consider the likely effect of any change in the child’s circumstances including the likely effect of her separation from either of her parents or any other child or person including any grandparent or other relative of the child with whom he or she has been living.
This is a complex issue and I intend to discuss it in conclusion after making findings about the remaining s. 60CC (3) matters.
I must consider 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.
This is not a relevant consideration.
I must consider the capacity of each parent to provide for the needs of the child including her intellectual and emotional needs.
The mother is a good parent.
The father’s counsel was highly critical of the mother for vilely abusing the father and his family in September 2015 over the passport issue and for sending the father some abusive text messages and she was right to be critical of her. The mother was frustrated and upset about the passport issue and was struggling to process what had happened on 8 March 2015 but there was no excuse for her behaviour.
However, it was a concentrated burst of abuse arising out of a particular issue and the mother’s feelings at a particular time. It has not been ongoing and it does not alter my view that the mother is a capable and caring parent.
The father’s counsel submitted in her Case Outline Document that:
The respondent mother maliciously seeks to use this parenting hearing as some sort of “retrial, rehearing or resentencing” of the father.
The mother seeks to punish the father as she is of the mindset that the courts have not adequately done this; the mother’s evidenced behaviour verges on being an abuse of the legal process.
There is absolutely no evidence to support this submission and the fact that the father, through his counsel, asserts it causes me have great concern about his capacity for empathy and his capacity to provide for the emotional needs of the child.
The father has obviously never reflected on how his changed position about whether he in fact committed any offence and his considering it a real possibility that he railroaded by the mother into pleading guilty when he should not have would impact on [X] if she found out about it.
[X] is living in household which accepts (although the extent to which [X] has been told about it was not explored) that the father abused [A]. The father said that he would tell her that he had done so if she asked but at trial he expressed considerable doubt about whether he had and made a multi-pronged attack on the mother as a person. I would have considerable concern about making an order for unsupervised time given the father’s confused and confusing position about the 8 March 2015 incident.
I must consider 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 relevant as a separate consideration.
I have to consider any family violence involving the child or a member of the child’s family.
The father engaged in sexually abusive behaviour toward [A] when he photographed or attempted to photograph her naked in the bathroom, and in that respect he committed an act of family violence as that term is defined in the Family Law Act. However labelling the father’s behaviour in that way is not helpful in resolving appropriate parenting orders for [X].
I must consider whether a family violence order applies or has applied to the child or a member of the child’s family and if so the inferences that can be drawn from the order.
A final ADVO was made in August 2015 for the protection of [A] from the father for a period of two years. It has now expired. It will not assist me to consider as a separate issue the inferences which can be drawn from the order being made.
The father applied for an ADVO against the mother in 2015 but he later withdrew his application. I have discussed the basis for this application in the parenting capacity section of the judgment.
I must consider the attitude to the child and the responsibilities of parenthood demonstrated by each of her parents.
The mother has demonstrated a good attitude to the child since 8 March 2015. She was slow to arrive at a position that [X] should not see or speak to her father again and she agreed to her spending time with the father provided it was supervised. Prior to the unfortunate incident in September 2015, she was prepared to agree to time supervised by the paternal grandparents. She also agreed to Facetime communication.
In her response filed in December 2015 and at a mention of the matter in March 2016 she was prepared to consent to supervised time. It did not happen because the father would not agree to it.
By the time the father changed his mind, twelve months had passed since he had seen [X] and the mother’s family were in a different place in their lives.
The father showed a poor attitude to the child and the responsibilities of parenthood by filming or attempting to film [A] but considering the issue from that perspective is not helpful in terms of resolving an appropriate outcome.
I must consider 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.
The father’s counsel put to the family report writer that if an order was made for [X] to spend no time with and have no communication with the father she might seek him out when she entered her teens and gained some autonomy. The family report writer conceded that this could happen, and it is true that if it happened it could result in further proceedings, but whether it is likely to happen is highly speculative.
The Independent Children’s Lawyer submitted that an order should be made for [X] to have telephone communication with the father because this might make it less likely that she would impetuously seek him out as a teenager, by implication perhaps leading to further proceedings as well as putting her safety at risk.
This is also highly speculative.
The mother said that as a result of the incident, she would always be anxious if the father spent unsupervised time with [X]. This is easy to accept given the nature of the offence and in my view not only would she be anxious, she is also likely to be hypervigilant and on the lookout for signs that something is amiss and all too ready to place the worst possible interpretation on situations. In the light of the father’s shifting position about his culpability for the 8 March incident, she is hardly likely to believe any explanation he gives if something happens to concern her and there is a considerable risk that unsupervised time would rapidly lead to the matter returning to court.
An example of the mother immediately leaping to conclusions is the incident after separation when [X] took a photo of herself in the bath. In some families and with some people this might not have caused alarm. In this family and in the circumstances of this case, it reinforced the mother’s view that the father had an unhealthy interest in young females.
There is a considerable risk that if an order is made for unsupervised time, [X] will come home and say things which result in the mother either withholding her leading to contravention proceedings or bringing fresh proceedings.
The other thing which might rapidly lead to the matter returning to court, is if the mother has difficulty complying with an order for unsupervised time, and the father’s vacillation at trial about whether he had done anything wrong, will only have compounded the difficulty the mother will have in trusting him and seeing him as a person of value to [X].
The mother knows what happened on 8 March 2015 and she knows what the father told her on the night. To be faced now with the father not only raising a concern about whether he committed any offence but suggesting she has maliciously connived to have him plead guilty to an offence he did not commit, must surely have completely eroded any trust she ever had in him and is likely to make it very difficult for her to send [X] off to spend time with him, particularly unsupervised time.
The order least likely to lead to further proceedings is an order for no time but this is of course only one matter I need to consider.
I must consider any other fact or circumstance which the court thinks is relevant.
Orders for long term supervision are never desirable.
An order for professional supervision can all too easily break down for a range of reasons; services can become unavailable, cost can become an issue and children can become bored. In addition, professionally supervised time can also only usually be for short periods of time and it does not create an opportunity for a child to have a meaningful relationship with a parent.
Sometimes supervision by a family member can be considered and that may have the benefit of a child hardly realising they are being supervised, but the furtive nature of the offence the father committed means that the court would have to be very sure that the family member accepted that the offence had occurred and understood what was required of them as a supervisor, and no family members were put forward as potential supervisors in this case.
The mother has no family in Australia and does not trust the paternal grandparents to supervise [X]’s time with the father. She said that they contacted her on the night of the incident begging her not to tell [A]’s father who is a (occupation omitted). She said that since then they had downplayed the incident saying that the father had made a terrible mistake and was drunk.
I cannot assess whether those concerns are valid because the paternal grandparents did not give evidence and as the Independent Children’s Lawyer pointed out in submissions, this means that the court simply cannot consider them as possible supervisors of the father’s time with the child.
This leads into another issue namely, that it is regrettable that [X] has lost her relationship with her paternal grandparents. They are the only grandparents and the father’s family the only extended family [X] has in Australia.
However the paternal grandparents have never sought, through these proceedings or informally, to spend time with [X] since September 2015. The verbal abuse the mother visited on them would not have helped but it seems that the mother and paternal grandmother may not have had a good relationship prior to 8 March 2015 and it does seem to be correct as the mother asserts, that since the incident the paternal family have chosen to support the father and let their relationship with the mother, [A], [B] and [X] go.
An issue for the mother is how [B] and [A] would react to [X] spending time with the father. She said she was anxious about how she would explain it to them. She was particularly concerned about how an order for time would impact on [A].
I cannot have regard to [A]’s best interests, I must have regard to [X]’s, but [X] is part of a family unit comprising her mother and siblings. I consider that the mother is entirely genuine in saying that she would find it very difficult to encourage a relationship between the father and [X] and in being concerned about the impact on her family unit and therefore on [X] of an order that [X] spend time with the father.
Parental Responsibility
Pursuant to s.61DA of the Family Law Act, I am required to apply a presumption that it is in the child’s best interests that the parents have equal shared parental responsibility for her, absent a finding that one of the parents has engaged in abuse of the child or family violence.
The father has engaged in family violence in respect of [A] and the presumption does not apply.
I can still make an order for equal shared parental responsibility even if the presumption does not apply, but the only order open to me in this matter is an order that the mother have sole parental responsibility.
The distrust and suspicion between the parents is so great and the gulf between them so wide that it is impossible to imagine them being able to discuss decisions which need to be made about [X] and coming to an agreement. It would not be in [X]’s best interests for an order to be made for equal shared parental responsibility and the father’s counsel was silent about this issue in her closing submissions.
The Family Report
The Family Report writer neatly set out the problems thrown up in the matter in the following paragraphs:
Clearly the reality is that an indefinite Order for the father to spend supervised time with [X] is not feasible or desirable. The Court is in the position to decide that if the mother’s evidence about her concerns upon reflection regarding the father’s alleged grooming process of [X] are to be believed, then clearly there are concerns about the father spending unsupervised time with [X]. However if the Court accepts the evidence of the clinical psychologist, Dr J, the senior psychologist, Ms T from the Department of Corrective Services and the psychiatrist Dr G, then the Court is likely to make an alternative decision with regards to the father spending some time with [X] in the future. This remains a difficult and complex issue, as does the issue about the paternal grandparents spending time with [X], unless they join the proceedings and give certain undertakings.
Another reality in these proceedings is the future relationship of the sibling relationships and whether they become fragmented as a result of the father’s offence, if [X] was to commence spending time with her father particularly as given by all accounts they previously had a close relationship. There is no doubt that in matters where parents separate, it is an imperative that the sibling relationships remain as strengthened as possible.
The family report writer did not make any recommendations and his report ended with the following paragraph:
For the information and decision of the court.[7]
[7] Family Report paragraph 65
Conclusion
The father’s actions on 8 March 2015 broke his family just as Humpty Dumpty falling off the wall broke his shell and I cannot put the pieces together again.
There is a risk element to the case but risk is not the only issue.
It may be only open to me to find as the Independent Children’s Lawyer suggested, that given the nature of the offending the unacceptable risk to [X] is that the father might spy on her when she enters puberty but the mother might not be able to apply the same dispassionate reasoning to the situation.
The nature of the father’s offending, surreptitious as well as abusive, together with the incident after separation means that the mother is likely to always be distrustful of the father and is always be hypervigilant about things which she hears from [X] and suspicious about things which [X] says upon returning from spending time with the father.
There is a high risk that an order for unsupervised time would break down and that further proceedings would quickly follow especially given the way the father ran his case at trial.
I cannot be sure whether things would have been different if the father had not taken the course he did of questioning his culpability and launching an attack on the mother but he has done those things and not only does that increase the risk of orders for unsupervised time breaking down because of distrust between the parties, it has created a situation where I would have real concern about [X]’s emotional wellbeing if she has to move between the two households.
There is also force in the Independent Children’s Lawyer submission that there would be considerable artificiality in ordering that unsupervised time occur now because [X] has not entered puberty but that the time cease or become supervised when she did enter puberty. I agree that it is difficult to see the benefit to [X] of making such an order.
I could order supervised time from now on but long term orders for supervised time are inherently problematic as the Full Court has recognised on many occasions.
Short supervised visits would not lead to [X] having a meaningful relationship with the father and she might have more questions than answers about why she had to see him supervised.
[X] is part of a family unit. [A] and everyone in that family unit believes the father offended against [A], and to send [X] to spend even supervised time with the father in circumstances where the father is now wavering about whether he committed any offence at all, could cause psychological problems for [X] and could drive a wedge between [X] and her sisters.
By the time of the family report interviews in September 2016, [X] had clearly begun to adjust to not spending time with her father and in my view, all of the relevant matters in this case point to there being no benefit to [X] in me making an order for her to spend time with him.
The Independent Children’s Lawyer did not ask the court to make an order for time but she did propose that an order be made for [X] to have Facetime communication with her father.
If that type of communication had been ongoing at the time of trial, I would have considered making that order, but it had ceased by the time of trial and by the time this decision is handed down it will have been twelve months since it occurred. For me to make an order requiring the mother to start it up again seems to me undesirable and likely to lead to confusion for [X] and possibly lead to contravention proceedings.
I do intend to depart slightly from the orders sought by the mother. The order I intend to make is that [X] spend no time with and have no communication with the father unless the mother consents, with the mother to record her consent in a written communication.
The reason for this is that I do not know how the parties’ lives will play out. The father’s attitude to his offending may change. The mother was willing for some limited time to occur under supervision immediately after separation and she facilitated Facetime communication for twelve months. A time could come or a situation could arise where the mother was willing to agree to some limited time or some communication and I would not want a court order to be sitting there which on its face prohibited it, notwithstanding that court orders can be superseded by a parenting plan.
I acknowledge that an order in this form could, depending on how things do play out, leave the mother open to [X] accusing her of being the reason she has not had a relationship with her father, but on balance I consider it is an order that should be made.
The Independent Children’s Lawyer proposed that the father be permitted to send the child letters, cards and gifts. I do not intend to order this because in circumstances where there is to be no time and no communication, it could be confusing and difficult for the child if letters, cards and gifts arrived spasmodically. If the mother consents to this occurring in the future, it can happen but I am not going to make the order proposed by the Independent Children’s Lawyer.
I certify that the preceding one hundred and ninety three (193) paragraphs are a true copy of the reasons for judgment of Judge Terry
Date: 29 March 2018
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