Eyles and Eyles
[2016] FCCA 1513
•21 June 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| EYLES & EYLES | [2016] FCCA 1513 |
| Catchwords: FAMILY LAW – Parenting – Child almost 3 – where two older children of the father from his previous relationships have alleged that the father sexually abused them – where the father denies sexually abusing these children but concedes that on the evidence the best he can hope for is supervised time with his youngest child – where the father proposes that the child spend time with him supervised by the paternal grandmother – where the paternal grandmother is willing to supervise but accepts the father’s denials and shows no empathy for the child – issue of whether supervision by the paternal grandmother will keep the child safe – issue of whether there is any benefit to the child in spending time with the father – order made for no time. |
| Legislation: Family Law Act 1975, ss.60CC, 61DA |
| Cases cited: Johnson & Page (2007) FLC 93-344 |
| Applicant: | MS EYLES |
| Respondent: | MR EYLES |
| File Number: | NCC 2997 of 2014 |
| Judgment of: | Judge Terry |
| Hearing dates: | 14 & 15 June 2016 |
| Date of Last Submission: | 15 June 2016 |
| Delivered at: | Newcastle |
| Delivered on: | 21 June 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr Sharrock |
| Solicitors for the Applicant: | Geoff Garside Solicitor |
| Counsel for the Respondent: | Mr Murray |
| Solicitors for the Respondent: | Toronto Legal |
| Counsel for the Independent Children's Lawyer: | Mr Boyd |
| Solicitors for the Independent Children's Lawyer: | Legal Aid NSW |
ORDERS
The mother shall have sole parental responsibility for the child X born (omitted) 2013.
The child shall live with the mother.
The child shall spend no time with and have no communication with the father.
IT IS NOTED that publication of this judgment under the pseudonym Eyles & Eyles is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT NEWCASTLE |
NCC 2997 of 2014
| MS EYLES |
Applicant
And
| MR EYLES |
Respondent
REASONS FOR JUDGMENT
Introduction
X is almost 3. Currently she lives with her mother and spends time with her father supervised at a contact centre.
The mother’s proposal for future parenting arrangements at the commencement of the hearing was that X should live with her and spend time with the father supervised by a person or persons deemed suitable by the court and at a time and frequency determined by the Court. The mother also sought an order for sole parental responsibility.
The father’s proposal was that the parties should have equal shared parental responsibility and that X should live with him and spend time with the mother on alternate weekends, for an overnight each alternate week and during school holidays.
The father was unable to adequately explain when in the witness box why he was asking for such a radical change and he refused to acknowledge that it might be very difficult for his daughter to be separated from her primary carer.
When pressed to consider his position further, the father said that if the court declined to order that the child live with him it should at least order equal time.
The problem for the father was that on the material available to the court even a move from supervised to unsupervised time looked problematic, let alone a change of residence.
The father has two older children A born on (omitted) 1994 and B born (omitted) 2002.
When A was five months old, the father assaulted him by grabbing and squeezing his face causing bruising. The father was charged and convicted in respect of this incident.
In 1990-2000 and again in 2005-2006, A alleged that the father had sexually abused him. The allegations were investigated on the second occasion but no charges were ever laid.
In 2007, B alleged that the father had sexually abused her and a JIRT investigation was conducted. No charges were laid but in the Family Court proceedings which followed Dr C, a child and family psychiatrist, recommended that the father spend no time with B. The proceedings were settled in 2009 with consent orders that the father spend supervised time with B on four occasions each year but only three supervised visits ever occurred.
It was also alleged that when the father was 12 he behaved in a sexually inappropriate way with a five year old cousin.
The father admitted physically assaulting A, indeed he could hardly do otherwise given his conviction but he denied sexually assaulting either A or B and alleged that A had now recanted his allegations. He put the incident with the cousin down to childhood experimentation.
Notwithstanding this, during final submissions the father’s counsel was instructed not to oppose an order that the child live with the mother and that the mother have sole parental responsibility and submissions were directed to the issue of what time if any the child should spend with the father.
The father sought an order that the child spend time with him each alternate weekend (including an overnight) supervised by the paternal grandmother. His fall-back position was that this time should happen once a month, also including an overnight.
Counsel for the Independent Children’s Lawyer proposed that the child spend time with the father from 9.00am to 5.00pm on the first Sunday of each month supervised by the paternal grandmother and that the father have liberty to apply to vary the orders when the child was 8.
The mother’s counsel said that the mother was in the court’s hands.
It was recognised by all during final submissions that an option open to the court would be to make a “no time” order. This was the outcome the family report writer recommended should the court find that X would be at unacceptable risk of physical or sexual harm in the father’s care.
The evidence
The material filed by the parties was disappointingly brief given the issues in the case.
The mother relied on her amended application and a brief affidavit filed on 6 June 2016.
The father relied on his brief affidavits filed on 25 & 27 May 2016 and the affidavit of the paternal grandmother Ms H filed on 25 May 2016.
The father did not file an affidavit by A, who was present in court when the hearing began but left shortly thereafter, nor did he file an affidavit from anyone connected with providing him with assistance with his mental health issues.
The Independent Children’s Lawyer relied on an affidavit by Mr R filed on 19 May 2016. Mr R supervised time between the father and X from June to November 2015.
A Family Report was prepared by Ms D, a Regulation 7 Family Consultant. It was released to the parties on 26 November 2015.
By consent the report prepared by Dr C in 2009 was tendered as was an 11F memorandum prepared on 3 December 2014 by Ms K, a Family Consultant.
The mother, father, paternal grandmother and the family report writer were cross-examined. Mr R was not required and no-one requested that Dr C or Ms K be made available for cross-examination.
The mother was a satisfactory and credible witness. She was forthright and plain spoken and she made a number of admissions against interest.
The father was a most unsatisfactory witness. There was a strong flavour in his evidence of minimising his culpability for events such as the assault on A and he gave a different version to this court about what happened during an incident with a young male cousin when he was 12 and the cousin 5 to that given to Dr C.
Of particular concern was the fact that when these proceedings began the father inaccurately reported why he was not seeing B. In his affidavit filed on 9 January 2015 he said as follows:
I spend no time with B due to her mother actively discouraging a relationship, including making numerous allegations against me. I have reluctantly decided that it is better for B that I do not pursue a relationship until she is older. I deny the allegations made against me.
It was not until the Independent Children’s Lawyer came on board that the court was provided with a copy of Dr C’s report and the consent orders made on 27 October 2009 which include the following:
The father is to spend time with B under professional supervision at the (omitted) Children's Contact Service (“(omitted)”), or such other professional supervisor or supervisory organisation as may be agreed between the parents for a minimum of two hours once every three months, and the parties must ensure that (omitted) has a copy of the report of Dr C.[1]
[1] Order 2.4 of the Orders made by Consent on 27 October 2009.
The family report writer spoke to the father about B and said as follows:
When challenged both with Dr C's recommendation that B spend no time with the father and the final orders that B only spend time with the father four times a year, supervised by a contact centre, the father denied that this indicated the court was of the view that B was at an unacceptable level of risk of sexual harm in the father's unsupervised care. The father claims the court did not make the orders, rather he and B' s mother consented to the orders and that the orders were just a temporary measure to rekindle B's relationship with the father and that his time would then progress to unsupervised time.
The father reports historically he only spent time with B on three ordered occasions of supervised time and has not spent time with B since. The father claims the first occasion of supervised time with B went very well but on the second occasions, B curled up in a ball and appeared terrified of the father, so the session lasted about ten minutes. The father reports on the third occasion, B was again very distressed and the session was concluded. The father reports the contact centre then refused to supervise his time any longer. The father reports he caught sight of B recently in a park and the father tried to introduce X to her but B ran away from him.[2]
[2] Family Report, paragraphs 54 & 55.
The father’s lack of honesty with the court when the proceedings began about why he was not seeing B causes me considerable disquiet. It means that I cannot simply accept without question his denial that he sexually abused her and it causes me to be suspicious about what further digging around other assertions made by the father, such as that his psychologist Mr B said that he no longer needed to see him and that he was currently engaged with a psychiatrist through the (omitted) Medical Centre, might have revealed.
Background
The father is 42 and the mother 22. They met in 2011 when the mother was 17 and in a relationship with A who is the same age.
The mother and A slept in the same bed at the father’s home and the father’s assertion that he did not know that they were in a relationship is not credible.
After a relatively short period of time the mother ended her relationship with A and began a relationship with the father. They commenced cohabitation in either December 2011 or March 2012 and married in (omitted) 2013. They have one child, X, born on (omitted) 2013.
The father is a (occupation omitted) who often does interstate driving and the mother was X’s primary carer while the parties were together.
The parties separated on 20 August 2014 when X was 13 months old. The father would not initially allow the mother to take the child but the mother was able to collect her after a couple of days with the assistance of the maternal grandfather and her and the child commenced living with the maternal grandfather and step-grandmother in (omitted).
At or about the same time the mother formed a relationship with Mr J who lived on the (omitted).
On 4 September 2014 the mother dropped X to the father for a few days and went to the (omitted) to spend time with Mr J. After she left, the maternal grandfather spoke to the father and said that he was concerned about the mother’s circumstances. He suggested that the father not return the child and that X live with the father for five days each fortnight and with the maternal grandfather and step-grandmother for nine days each fortnight. The father agreed to this proposal and it was carried into effect.
The maternal grandfather communicated this to the mother who was angry but did not immediately do anything to try to prevent it happening. She remained on the (omitted) and for the next five weeks saw X on only two or three brief occasions.
Before too long however the mother and maternal grandfather mended their differences. The maternal grandfather and step-grandmother met Mr J and inspected the mother’s home on the (omitted) and pronounced it satisfactory and on 16 October 2014 they handed X over to the mother.
Two days later the mother and Mr J attended a public event at (omitted) in (omitted) with X. The father had been in contact with the mother wanting to talk and the mother agreed to talk to him at the conclusion of the event.
The father came to the venue and almost immediately decamped with X despite efforts by the mother and Mr J to stop him.
I do not accept the father’s evidence that he did this because he found X unattended in a stroller. In oral evidence he said variously that the mother was 30 metres or 60 metres away and had effectively left X unattended but the mother denied leaving the child unattended by anyone and the father was not a witness of credit.
Once the father had X in his care he told the mother that she could not see her until she signed orders about X’s living arrangements which his solicitor had drawn up. He agreed during cross-examination that he had told the mother that if she did not sign the orders it might be years before she saw X.
The father enrolled X in day care and enlisted other adults to help him care for her, which he needed to do because he continued to work as an (occupation omitted).
On 17 November 2014, the mother filed an application seeking parenting orders and on the first return date of 3 December 2014 an order was made by consent for X to live in a shared care arrangement.
In due course an Independent Children’s Lawyer was appointed. He made the court aware of the 2009 Family Court orders concerning B and provided the court with a copy of Dr C’s report. As a result on 14 May 2015 orders were made for X to live with the mother and spend supervised time with the father.
Commencing in June 2015 the father spent time with X supervised by Mr R at (omitted), a children’s play venue. That ceased in November 2015 and the parties then went on a waiting list for time at (omitted) Children's Contact Centre.
Supervised time at the Contact Centre commenced in April 2016. The father was not able to attend all supervised visits and has spent time with X on only three occasions since April 2016.
The abuse allegations
The incident with the father’s cousin
In Dr C’s report reference is made to an incident which occurred between the father and a male cousin when the father was 12 and the cousin 5.[3]
[3] There are discrepancies in the ages given; elsewhere it is suggested that the cousin was 4 and the father 14.
The father told Dr C that there was a one-off incident which happened because his cousin pulled the father’s pants down to look at his genitals
The family report writer asked the father about this matter and said that upon challenge the father conceded that there was “some fondling involved.”
During cross-examination the father said that something happened on more than one occasion and that his own curiosity led to the incidents.
The allegations made by A
In 1999 and 2000 reports were made to police that A then aged around 5 or 6 had disclosed that he had been sexually abused by the father. The allegations were investigated but A made no disclosures during his interview and the matter went no further.
In June 2005 police were contacted after A then 11 allegedly made disclosures at school that his father had “raped him” and “sucked his cock.” Police contacted A’s mother who declined to bring A to a JIRT interview.
In January 2006 a call was made to the DOCS Helpline alleging that A had been made to put his doodle in the father’s bottom and that the father sucked his penis. This time A attended a JIRT interview and he made similar disclosures during the interview. He stated that these things had happened on a number of occasions and had happened about two years previously when he was in the care of the father.
Police felt that there was insufficient evidence to take the matter further due to incomplete disclosures and said that the child and his mother both told police they did not want to have to go to court.
In the proceedings before me the father alleged that A had told him that he had made false allegations because his mother put him up to it. He did not however call A to give evidence.
The allegations made by B
In October 2007 B’s mother contacted police about disclosures made by B then aged 5. B had been spending alternate weekends with the father following the separation of her parents.
B’s mother informed police that B had disclosed to her in January 2007 that her father “showered nudie” with her and touched her vagina. She also disclosed that the father slept naked with her and touched her with his penis.
B’s mother said that following these disclosures she contacted the father. He denied the allegations and she did nothing further at the time and B continued to spend alternate weekends with the father.
In October 2007 B disclosed to the mother’s partner that the father “puts his doodle in my vagina and it hurts.” B made further disclosures to her mother and the matter was reported to police.
A JIRT interview was conducted and B disclosed that she shared a bed with her father and that he put his fingers in her vagina and that it hurt and she made further detailed disclosures.
B’s mother ceased sending the child to spend time with the father and commenced court proceedings and in February 2009 Dr C conducted interviews for the preparation of an experts report.
In her report Dr C listed numerous reasons suggesting that B had been sexually abused and only two suggesting that she had not. She recommended that B spend no time with the father.
The allegations were never tested because the parties settled the proceedings and consent orders were made as referred to earlier. The father has not seen B for more than five years.
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 her best interests.
S.60CC (2) contains the primary considerations and s.60CC(3) the additional considerations.
I intend to start with the additional considerations and the first of these is 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 view.
X is too young to have a view about parenting arrangements.
I must consider the nature of the relationship of the child with each of the child's parents and other persons (including any grandparent or other relative of the child).
The family report writer was of the view that X was primarily psychologically attached to her mother and this is congruent with her care arrangements to date. The family report writer observed the child to have “an age appropriate dependence on the mother” and said that she “demonstrated a close and affectionate relationship with her.”[4]
[4] Family Report, paragraph 80.
X has spent very limited time with her father in the last twelve months but she is happy to spend time with him when she sees him. Mr R observed that and the family report writer observed X to engage easily with the father and accept a hug and a kiss from him when the session ended.
The family report writer also said as follows:
The mother reports X appears to enjoy the supervised time she is currently spending with the father. The mother reports when they arrive at the play centre, X immediately says "Daddy" and begins looking for his car or motorbike. The mother reports X starts to get excited when they approach the play centre and if she asks X what she did at the centre with the father, X says "fun."[5]
[5] Family Report, paragraph 41.
A accompanied the father to the interviews and X was observed to have an easy relationship with him although she would not kiss him goodbye.
The paternal grandmother has met X but has not seen her recently and did not attend the family report interviews.
I must consider the extent to which each of the child's parents has taken, or failed to take, the opportunity to participate in making decisions about major long-term issues in relation to the child, to spend time with the child and to communicate with the child.
This consideration does not assist me. For five or six weeks between August and September 2014 the mother did not vigorously pursue time with the child but apart from that she has always been a willing participant in the child’s life and insofar as the father has not spent time with the child in the last twelve months it is not because of lack of interest in her.
I am required to consider the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child.
The father is assessed to pay child support of about $47.00 per fortnight. It is garnisheed from his Centrelink benefit.
It is difficult to understand why the father is in receipt of Centrelink benefits. On his own admission he is a casual (occupation omitted) and he said that he earned $1,000.00 in the week prior to the trial. He alleged that his need to spend time with his daughter had interfered with his employment but he did not spend any time with her between November 2015 and April 2016 and has had only three visits with her since then.
I have reservations about whether the father is properly meeting his obligations to support his child but in the context of this case this consideration will not assist me to determine an appropriate outcome.
I am required to consider 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.
An option open to the court is to make a no time order which would permanently separate X from her father.
X has spent very limited time with her father in the last twelve months and it is likely that in the short term she would take this change in her stride.
The long term effects are more difficult to predict and could depend on what else X’s future holds. Sometimes a good stepfather fills the gap for a child. On the other hand X may deeply regret not having her father in her life and this may affect her adult decisions. I have had more than one case before me in which a person who did not have a relationship with their father as a child remained in an abusive relationship as an adult because they did not want their child to grow up without a father.
The family report writer was asked about identity contact during cross-examination and said as follows:
Look over the years I’ve seen a real swings and roundabouts with identity contact. When I first started many, many years ago identity contact was certainly the flavour of the month for good reason, but there were also services that would provide that. In the last 10 years or so, to my understanding, the services are too full… they can’t do that.
I’ve always been a little bit in two minds about it. If a child’s not allowed to spend time with a parent and yet four times a year they’re plonked in front of that parent for an hour, I’m not sure there is any quality of relationship in that hour. And I guess the thing that you risk is having the child then start to fantasise about, you know: “mum seemed nice or dad seemed nice, I bet if I lived with them I’d get my own bedroom and a pool”. And you can run that sort of risk or there is an argument that the child is happily going on with life and then four times a year you bring that child back into stark reality of “well this is your other parent but no you’re not allowed to see them or talk to them.” And I must admit I err a bit on that side.
I am required to 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 given the issue now in dispute.
I am required to consider 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.
The mother lives in (omitted) with the maternal grandfather and step-grandfather and their daughters aged 18 and 20. The mother and X each have their own room.
X attends an early learning centre one day a week and according to the mother is enjoying the interaction with the other children. The mother said that she hoped to arrange for her to attend an extra day.
The mother separated from Mr J in January 2016 and is not currently in a relationship.
The mother is not working outside the home but said that she hoped to study at TAFE and obtain a (qualifications omitted).
The mother does not have a criminal record, does not use drugs and does not have any mental health issues. She said that for a short period when she was on the (omitted) she drank excessively but that was two years ago now. The father said that the mother did not drink excessively or use drugs during their relationship.
The family report writer observed X to be a healthy little girl and the mother impressed in the witness box as a committed parent. I am satisfied that she is doing a very good job looking after X who also has the good fortune to be surrounded by a caring extended family.
The father lives in rented accommodation in (omitted) with an adult female housemate and her two daughters. He said that he intended to continue to work as a (occupation omitted). He conceded that he would need help both from day care and (because of the nature of his work and its hours) other people to care for X if she lived primarily or even equally with him but given the narrow issue now in dispute, this not a matter of concern.
The father has a history of mental health issues and has attempted self-harm.
In 1994 following the assault on A, he was briefly admitted to (omitted) Hospital. In 2003 he took an overdose of painkillers after B’s mother ended their relationship and he was admitted to the (omitted) Hospital for a few hours. In 2007 after finding out about B’s allegations, he was found by police on a cliff at (omitted) with a knife after leaving a suicide note although he said that he had no or little memory of exactly what happened on this occasion.
Dr C expressed the opinion that the father may have borderline personality traits and recommended that he engage in dialectical behaviour therapy. The father told the family report writer that he took this on board and did something similar with a psychologist named Mr B between 2008 and 2011. He said that he was currently being assisted by a psychiatrist through (omitted) Medical Centre but he did not provide any evidence about the current state of his mental health or from his treating psychiatrist. He said that his mental health was stable.
I cannot make any findings about the current state of the father’s mental health. He has not had any recent hospital admissions.
The mother is concerned that the father was a nudist. She said that she had protested during the relationship when he sat X on his knee when he was nude even though X was wearing a nappy. The father said that he and the mother belonged to a nudist club when they were together but they both ceased attending during their relationship. He claimed that he had ceased practising nudity at home but he was not a witness of credit.
The practice of nudity is not wrong in itself but in the context of this case it does add a layer of concern about the father, especially when B reported the father being nude with her in bed and in the shower. Also the family report writer made the following comment:
It is also of concern, given the history of allegations of sexual abuse against the father, that the father exposes X to his nudism. Given the history, this could be perceived as grooming behaviour.[6]
[6] Family Report, paragraph 86.
I am gravely concerned about the lack of empathy the father demonstrated for X in pursuing an order that she live primarily with him and when answering questions about how he felt a change of residence might affect her.
When he was asked about this in the witness box he was simply unable to reflect on how this might impact on his daughter and his back up suggestion that equal time should be ordered also demonstrated a complete lack of empathy for his daughter.
The father’s lack of empathy for the child is also evident in the following passage in the Family Report:
When asked what impact there may have been on X, of not having any contact with the mother for some two months [between October and December 2014], the father said "well she probably started to forget her Mum."[7]
[7] Family Report, paragraph 67.
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.
X is very young and is totally incapable of protecting herself or even speaking out if something is going wrong for her.
However X getting older will not necessarily mean that the risk of harm to her is lessened. The family report writer was asked during cross-examination if the child’s age made any difference to whether supervision was required in the face of the sexual abuse allegations and she said as follows:
I think you have to be very careful… I think it’s not only the act of sexual abuse if that’s what the Court is looking at, it’s also grooming behaviour. A child at 15 and 16 might quite normally developmentally try out their flirting tactics on their trusted male figure who is their father… I’d be concerned even at sort of 15-16.
Yes they are certainly old enough at 6 and 7 to tell somebody, but as we know a lot of children don’t disclose…. So I don’t think that’s a protective factor: just that a child can tell somebody. The grooming behaviour I worry about really until, well while a child’s a child because teenage girls … go through that developmental stage of practicing their skills.
I must consider if the child is an aboriginal child the need to ensure that the child had the opportunity to enjoy her aboriginal culture with other people who shared that culture.
The father described himself as part aboriginal in a day care enrolment form he completed in 2014 and he is currently receiving assistance from (omitted) Medical Centre. When asked about this in the witness box he said that he thought that he might be Aboriginal because people had told him he looked Aboriginal. He said that there had been no investigation of this and that the paternal grandmother denied it. The father does not know the identity of his father.
The information the father provided is not a sufficient basis for me to find that the father is Aboriginal or that X is an Aboriginal child.
I must consider the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents.
The mother displayed a poor attitude to the child for a few weeks in 2014 when her anger about the maternal grandfather’s intervention in the parenting arrangements led to her spending limited time with the child. However that quickly passed and it was two years ago.
The father displayed a poor attitude to the child and the responsibilities of parenthood when he refused to let the mother see the child because she would not sign consent orders prepared by his solicitor. He also told untruths to the child’s day care centre, alleging on the enrolment form that the child was at risk of harm from the mother because of physical abuse and drug and alcohol abuse.
The father’s retention of the child only ended when the mother brought the matter to court.
I must consider any family violence involving the child or a member of the child's family.
The father committed an act of family violence against A when the child was 5 months old. He also assaulted A’s mother at that time and was convicted of two offences of assault.
B’s mother alleged to Dr C that the father was violent to her and that he pushed her downstairs, hit her, grabbed her by the throat and would not allow her to leave the house.
The father made some limited admissions to Dr C about violence, alleging that when he was with his first partner he would “punch walls” and that he had pushed his first partner and slapped the face of his second partner, although he alleged that on both occasions it was in retaliation when the partners physically attacked him. In his affidavit in the current proceedings he admitted that he had been violent to A’s mother on more than one occasion but said that it was mutual domestic violence.
The mother did not allege that she was subjected to any physical violence but she claimed that the father was bad tempered and aggressive and was very controlling during the relationship. She said that he insisted that she hand her Centrelink payments over to him and then doled her out a limited amount of money, that he restricted her to one tank of petrol a week and put a tracking device on her phone.
The father denied that he was controlling. He said that the mother was young and that he was helping her manage money, that she spent too much on petrol visiting her family and that was why he objected and that he put mutual tracking devices on each party’s phone.
I tend to the view that the father did behave in a controlling and coercive manner to the mother during their relationship. The mother was generally a witness of credit and the father’s behaviour in withholding X because the mother would not sign the consent orders is evidence that the father is capable of behaving in a controlling and coercive way.
There are no relevant family violence orders.
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.
An order for no time and an order for supervised time both carry with them a risk of further proceedings although the order for no time perhaps less so.
In submissions Counsel for the Independent Children’s Lawyer proposed that a notation be made to the orders to the effect that the father could bring a further application about time when X turned 8 without facing an application for preliminary dismissal pursuant to the Rule in Rice & Asplund.
I must consider any other fact or circumstance that the court thinks is relevant.
It is relevant to note that the relationship between the parents is poor and distrustful and they do not communicate at all.
It is also relevant to note that the mother was very positive about the paternal grandmother during cross-examination and I will refer to that in more detail shortly.
The primary considerations in s.60CC(2) are:
a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
b)the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence
S.60CC(2A) provides that in applying the considerations in s.60CC(2) the court is to give greater weight to the considerations set out in s.60CC(2)(b).
Even absent the allegations of sexual abuse made by A and B, I would have some misgivings about the appropriateness of X spending unsupervised time with the father.
The father was violent to his infant son and has been violent to female partners in the past. He has mental health issues and has attempted self- harm on a number of occasions. He complained in the document he gave to child support in 2015 that he was out of employment because of the stress and anxiety he had been placed under and he said the same thing in the witness box. Dr C expressed concern that he may have borderline personality traits and he did not provide any independent evidence about the current state of his mental health. He also displayed a marked lack of empathy for his daughter.
The fact that there was no evidence that anything went wrong for X when she was in the father’s care in the latter half of 2014 is not sufficient to remove my concern that X might be at risk in his care in the future because of a propensity for violence or an inability to deal appropriately with stress.
However the major cause for concern about the father is the fact that two separate children have alleged that he sexually abused them and the allegation that he behaved in a sexually inappropriate way with a 5 year old cousin when the father was 12 only serves to heighten that concern.
The father maintained that A had recanted his allegations and had told him that his mother put him up to making them but he did not call A to give evidence. I accept that A may have found this an unpleasant experience but given that he was not called I can place no weight on the father’s assertion that A has recanted the allegations.
In her report prepared in 2009, Dr C listed the factors which suggested that B had been sexually abused as the following:
·On 11 October 2007, after a review of A’s history, the manager for casework with JIRT (omitted) notes “the information regarding A’s sexual assault and the context around how and when he disclosed does appear genuine”.
·Early 2007 disclosure of father touching her vagina in the shower with vagina tear and discharge seen by Ms B.
·September 2007 disclosure after not wanting to see her father
·B’s second disclosure seemed spontaneous but then somewhat confusing, probably because of her age and the questioning at home and the long JIRT interview. Her current matter of fact manner when speaking of abuse could be accounted for by the long period of time that has passed since the alleged abuse occurred and also by her mother’s very appropriate approach with B.
·I am not aware of B previously talking about a “sticking up” penis as she referred to the various penises she has seen. Of note B only referred to the position of penises after I asked her to complete a drawing but the position of a penis was not suggested. Her awareness of an erect penis indicates she has seen one or it has been suggested to her with previous questioning.
·There appeared to be no reason why B’s family would induce her to falsely make the disclosures, especially as Ms B seemed aware of the serious psychological consequences for B of this action.
·Mr Eyles presents as an immature, impulsive man who has experienced significant trauma in his life. He has not done the psychological work which would be required to address and resolve the undoubted disturbances they would have caused him.
She then listed the factors suggesting that she had not been abused as the following:
·B does not present as a traumatized child, either now or historically at the time of the alleged abuse.
·Mr Eyles refutes the allegations.
The fact that the father refutes the allegations does not carry much weight with me when there is considerable reason to be concerned about his credit. He gave a different version of events to this court about what occurred with his much younger cousin than he gave Dr C; he initially misled the court about why he was not seeing B; and he was generally not a witness of credit and was evasive about matters such as his current work situation and earnings.
There was a strong flavour in the father’s evidence about past issues in his life of blaming others. For example he told a long story about how the behaviour of A’s mother led to him being stressed at the time he assaulted A and asserted that while he had assaulted A he had not really assaulted A’s mother but had pleaded guilty to the charge of assault as a result of blandishments by the prosecution.
I cannot make a finding on the balance of probabilities that the father sexually abused A or B or his young cousin but in the 1988 case of M & M the High Court said as follows:
[I]t is a mistake to think that the Family Court is under the same duty to resolve in a definitive way the disputed allegation of sexual abuse as a court exercising criminal jurisdiction would be if it were trying the party for a criminal offence …
In considering an allegation of sexual abuse, the court should not make a positive finding that the allegation is true unless the court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v Briginshaw (1938) 60 CLR 336 at 362; [1938] ALR 334; (1938) 12 ALJ 100 …
No doubt there will be some cases in which the court is able to come to a positive finding that the allegation is well-founded. In all but the most extraordinary cases, that finding will have a decisive impact … There will be cases also in which the court has no hesitation in rejecting the allegation as groundless … [T]here will be very many cases, such as the present case, in which the court cannot confidently make a finding that sexual abuse has taken place. And there are strong practical family reasons why the court should refrain from making a positive finding that sexual abuse has actually taken place unless it is impelled by the particular circumstances of the case to do so.
In resolving the wider issue the court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assessing the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child's welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access. In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access. Even in such a case, however, there may be a risk of disturbance to a child who is compulsorily brought into contact with a parent who has sexually abused her or whom the child believes to have sexually abused her …
Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. The degree of risk has been described as a “risk of serious harm” (A v A [1976] VR 298 at 300), “an element of risk” or “an appreciable risk” (In the Marriage of M (1987) 11 Fam LR 765 at 770 and 771; FLC 91-830 respectively), “a real possibility” (B and B (Access) (1986) FLC 91–758 at 75,545), a “real risk” (Leveque v Leveque (1983) 54 BCLR 164 at 167), and an “unacceptable risk” (Re G (a minor) [1987] 1 WLR 1461 at 1469). This imposing array indicates that the courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child's paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.[8]
[8] M & M [1988] FLC 91-979.
In Johnson and Page[9] the Full Court put it this way:
[9] Johnson & Page [2007] CLC 93-344.
1. The decisive issue is and always remains the best interests of that child. All other issues are subservient.
2. The nature of the risk is best expressed by the term ‘unacceptable risk’. It is an evaluation of the nature and degree of the risk and whether, with or without safeguards, it is acceptable.
3. Where past abuse of a child is alleged it is usually neither necessary nor desirable to reach a definitive conclusion on that issue. Where, however, that is done the Briginshaw civil standard of proof applies.
4.The circumstance, if it be so, that the allegation of past abuse is not proved in accordance with Briginshaw, does not impede reliance upon those circumstances in determining whether there is an unacceptable risk.
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.
I am satisfied that on the balance of probabilities there is an unacceptable risk of X being subjected to sexual abuse if she spends unsupervised time with the father.
Two different children have made allegations that the father sexually abused them when they were not much older than X. The father did not call A to support his claim that A had recanted the allegations, and Dr C provided a compelling list of reasons why B’s allegations could not be discounted. Additional information such as what happened with the younger male cousin and the father’s practice of nudism add a level of unease and finally the father’s denials carry no weight given that he was not a witness of credit.
I could not consider placing X in the position of spending unsupervised time with the father.
The father said that the court should be comforted by the fact that after he began to care for X in August 2014 he was visited by the Department of Family and Community Services (DoFACS) who interviewed him and sighted X and his home and indicated that they were happy for X to remain in his care.
This does not give me comfort, rather it is troubling given the allegations against the father which DoFACS were aware of as a result of the previous JIRT investigations, and in any event in the end I must make my own assessment of the situation.
The father through his counsel accepted at the end of the hearing that the court was likely to make a finding that X would be at unacceptable risk of harm if she spent unsupervised time with him and he proposed an order for supervised time. It was his case, and the position of the Independent Children’s Lawyer, that this would keep X safe and at the same give her the opportunity to have a relationship with her father.
Certainly X would be safe from harm if she spent time with the father at a place such as (omitted) Children's Contact Centre. The time would be closely supervised within the confines of a room and outdoor area and there would be no risk of X being sexually abused. There was no evidence that X herself had been abused or harmed by the father and she shows no reluctance to see him. This is not a case in which supervised time might lead to the child suffering psychological harm.
This kind of time can be problematic however if it is prolonged, for example because a level of boredom sets in but the more pressing problem is that Contact Centres no longer provide indefinite supervised time and many such as the (omitted) Children's Contact Centre, do not provide it once final orders are made.
There are organisations such as (omitted) which might provide supervision for longer (although I am not certain about that) but they are expensive and there was nothing to suggest that the father could pay for such a service. In addition the family report writer observed as follows during cross-examination:
The other thing about paid supervision – yes that can work – but again a lot of private supervision places take people to the park, take them bowling, take them to the swimming pool I’ve found. There is no way that you can guarantee a child’s sexual safety in regard to sexual fondling if they’re in a public playground or a place and that makes it really difficult because then we are talking about a confined area with a supervisor watching everything that’s going on and I’m not sure that that’s healthy for a child over a long period of time.
The father’s proposal, and that of the Independent Children’s Lawyer, was that the paternal grandmother should be the supervisor.
The paternal grandmother gave evidence and said that she was willing to be the supervisor. She is 59 and lives in a house which she shares with another person but it has a discrete section which she uses. Her section has two bedrooms. If the father stayed overnight then he would sleep in one bedroom and X would have to share the other bedroom with the paternal grandmother.
X has met the paternal grandmother although not recently and on the plus side when the mother gave evidence she said that she would trust the paternal grandmother to supervise the time. She described her as a tough person who would brook no nonsense from the father (although those were not her words).[10]
[10] Her exact words were “I know she’s not one to mess with.”
Unfortunately the paternal grandmother’s answers during cross-examination give rise to considerable concern about whether she would be an appropriate supervisor.
The mother’s counsel asked the paternal grandmother at the start of his cross-examination of her how she felt about her son’s proposal that her granddaughter be removed from the mother and go to live with the father. Her response was: “I support my son.”
The paternal grandmother said that she felt that X would adapt well to the change and when asked if there might be any adverse effect on X she responded “I don’t believe so.”
The paternal grandmother did not pause for a moment before endorsing the father’s proposal or show a glimmer of empathy for the child who would in those circumstances be abruptly separated from her primary attachment figure.
The paternal grandmother’s response when she was asked about how the child would cope with equal time was the same.
The paternal grandmother’s presentation in the witness box bore out the mother’s description of her as a tough person who would brook no nonsense but not in a comforting way.
Questioned further, the paternal grandmother said that she did not believe that the father had sexually abused A or B or that there was anything other than normal childhood experimentation involved in his actions with a younger cousin. She said that she did not accept that he posed any risk to X. When asked if she might find it difficult to keep up the supervision and might slack off in doing so her response was “I wouldn’t put Mr Eyles in that position.”
It was absolutely clear when the paternal grandmother gave evidence that her loyalty was to her son, not to the young granddaughter she has not seen for a year and for whom she displayed no empathy.
The family report writer’s recommendation was that if the court found that X was at unacceptable risk of sexual harm if she spent time with the father, then a no time order should be made. She did not consider that the paternal grandmother could keep X safe and questioned the extent to which X would have a meaningful relationship with the father once she came to realise why the time was being supervised.
During cross-examination she gave the following compelling evidence:
I guess three points arise out of everything that has been said. The first thing is that I do have difficulty with somebody saying they’ll supervise, therefore be alert and aware to something they think never happened. Coupled with that the best meaning supervisor can be really vigilant for the first few weeks and months, but if they don’t really believe there is a danger it is just human nature - like going on a diet - you start with all the commitment in the world and life gets in the way.
The other point is that sexual assault can happen in a second, it can happen while somebody’s back is turned… and during the day, a lot of people think sexual assault only happens in the dark hours. No person, except a supervision centre, can watch a person with an active child all the time. The other part of it is it puts a grandparent in an untenable situation because if they see something or think something’s happened, they are then required to dob in their own child. And what makes it even harder is that what they then realise is that they too might lose access with their very loved grandchild. So it is a huge pressure and I think sometimes an inhumane pressure to put on a grandparent.
The only other point I’d make is that if the Court found that there was a risk of sexual harm then the child needs to be told this age appropriately because the best protection is self-protection. When she gets to 8, 9 and 10 and fully understands why she needs to be protected from her father, how is she going to sit with that, particularly if she’s formed a love and affection with him and then comes to understand this other bit of information about him? And that’s a murky area as well. Then the child thinks: “Well was it really criminal? Was it really wrong?” I tend to err on the side if there is an unacceptable level of sexual risk of harm then I feel the only safe way is to have no contact.
Conclusion
In the light of the family report writer’s evidence and in the light of the way the paternal grandmother presented in the witness box, I could not possibly consider ordering as the father’s counsel proposed, that the father spend time with X from Saturday to Sunday each alternate weekend or even overnight once each month supervised by the paternal grandmother. The risk of something going wrong during such an extended period would be unacceptably high.
The Independent Children’s Lawyer proposed that X spend time with the father supervised by the paternal grandmother on the first Sunday of each month from 9.00am to 5.00pm.
Counsel for the Independent Children’s Lawyer submitted that the court should take comfort from the fact that the mother said during cross-examination that she trusted the paternal grandmother and further submitted that it would be in X’s best interests to have a relationship of some kind with the father. The Family Law Act recognises the benefit to children of having a relationship with both of their parents and X reacted well to the father at the family report interviews, which both predicated against a complete cessation of time.
However for two reasons I do not consider that the proposal that the child spend time with the father supervised by the paternal grandmother should be adopted.
First, I cannot be satisfied in the light of the family report writer’s evidence that this supervision would keep X from sexual abuse.
The father’s counsel urged me to have regard to Wardle & Wardle,[11] a case in which the trial Judge considered that the risk of harm to children would be acceptable if the children lived with the father at the home of the paternal grandparents. The difference between that case and the one before me however is illustrated in the following passage from the Full Court decision:
Accordingly, the protective feature of the condition [the trial judge] imposed was not so much that it might prevent the children inadvertently seeing child pornography (given that the husband’s parents lived in a separate part of the house) but rather that living in his parents’ home would make it more likely that the husband would not revert to his habit of using child pornography.[12]
[11] Wardle & Wardle [2016] FamCAFC 77.
[12] Wardle & Wardle [2016] FamCAFC 77, 58.
The risk in the case before me is of X being sexually abused and there are compelling reasons amply set out in the passage of evidence given by the family report writer and referred to in paragraph 165 of this Judgment reinforced by my concern about the paternal grandmother’s lack of empathy for the child, to find that supervision by the paternal grandmother would not reduce that risk to an acceptable level.
Second, it has to be seriously open to question whether X would have a meaningful relationship with the father at all once she came to understand the reason why she was only having supervised time with him, and as the family report writer pointed out it is inevitable that she would have to be told. She would have to be told to ensure that she was protective of herself, and she would be entitled to some explanation of why she was not able to see her father unsupervised.
X will take a no-time order in her stride at her present age. She is likely to ask questions when she gets older and notices that other children have involved fathers and fathers they spend time with. The mother will have to be prepared to answer her questions and explain things too her in an age-appropriate, perhaps on many occasions.
It is a loss for X not to have a father in her life but I cannot bring myself to make an order that she spend time with the father in the light of the allegations by A and B and what I consider to be the unsuitability of the paternal grandmother to be the supervisor.
The mother is not hostile to the paternal grandmother and the option exists for the paternal grandmother to make separate arrangements to see the child in circumstances safe for the child if that is something she wishes to do.
Counsel for the Independent Children’s Lawyer proposed that an order be made for the father to be permitted to send the child letters, gifts and cards and that he be permitted to attend school events. The mother in cross-examination did not oppose the father attending school events.
If I had made an order for supervised time then I would have considered making these orders but it is only likely to be confusing and difficult for the child if these orders are made when otherwise the order is for no time and no communication.
The father’s counsel proposed that there be an order for telephone communication but for the same reason as above I do not intend to make that order.
Parental Responsibility
In the end parental responsibility was conceded by the father but I make the following observations.
Pursuant to s.61DA of the Family Law Act the court is required to apply a presumption that it is in the child’s best interests that the parties have equal shared parental responsibility absent a finding that one of the parents has committed an act of family violence or has abused the child.
The father has committed acts of family violence upon A and A’s mother if nothing else. The presumption therefore does not apply but this does not preclude the court making an order for equal shared parental responsibility if it considers that to be in a child’s best interests.
The family report writer’s view was that an order for equal shared parental responsibility should not be made if there was a clear power imbalance between the parties.
The father is 20 years older than the mother and there is clear evidence that he did dominate her during the relationship and try to control where she went and who she spoke to. The parties have been separated for two years however and despite the mother’s voiced concerns, I consider it open to question whether she would now allow the father to dictate to her.
The more important issue is that the parties do not communicate at all and the father will not be spending time with the child in the future and in those circumstances the only appropriate order is for the mother to have sole parental responsibility for the child.
I certify that the preceding one hundred and eighty-five (185) paragraphs are a true copy of the reasons for judgment of Judge Terry
Date: 21 June 2016
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