FAIRBURN & GODFREY

[2015] FamCA 404

FAMILY COURT OF AUSTRALIA

FAIRBURN & GODFREY [2015] FamCA 404

FAMILY LAW – CHILDREN – Best Interests – Where the evidence established the child remains at risk of harm from sexual abuse while in the care of the father – Where the mother’s partner also poses some lesser risk to the child’s sexual safety – Where there was serious physical family violence between the parties – Where the child can be protected from family violence between the parties by orders which do not require her to spend time or communicate with the father – Where nothing can be practicably done to protect the child from exposure to family violence in the mother’s household – Where the risk of the mother exposing the child to further harm through neglect remains pronounced – Where the parenting capacity of both parents is impaired by reason of their use of alcohol – Where the Department declined to intervene – Where the parties agreed the child should live with the mother – Where the evidence supports a permanent restraint of the child spending any time with the father, but not upon occasional written communication between them – Child to live with the mother – Parties restrained from allowing the child to spend any time with the father – Child and father permitted to communicate in writing on an intermittent basis

FAMILY LAW – CHIILDREN – Parental Responsibility – Where the past family violence between the parties now renders the presumption of equal shared parental responsibility inapplicable – Where the parties are highly antagonistic and incapable of engaging in civil discussion – Where the party with whom the child lives should have exclusive parental responsibility – Mother to have sole parental responsibility

Evidence Act 1995 (Cth), ss 140

Family Law Act 1975 (Cth), ss 4, 4AB, 60B, 60CA, 60CC, 61B, 61DA, 62B, 64B, 65AA, 65D, 65DAA, 65DAC, 65DAE, 65DA, 68B, 69ZT

H & K [2001] FamCA 687
M & M (1988) 166 CLR 69
Marriage of Bieganski (1993) 16 Fam LR
Moose v Moose (2008) FLC 93-375

APPLICANT: Ms Fairburn

RESPONDENT: Mr Godfrey

INDEPENDENT CHILDREN’S LAWYER: Mr Foat, Foat Roberts Lawyers

FILE NUMBER: NCC 759 of 2014

DATE DELIVERED: 29 May 2015

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Austin J

HEARING DATE: 20, 21 & 22 May 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Kelly

SOLICITOR FOR THE APPLICANT: Fowler Predny Solicitors

COUNSEL FOR THE RESPONDENT: Not Applicable

SOLICITOR FOR THE RESPONDENT: Not Applicable

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Bates

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Foat Roberts Lawyers

Orders

1. All former orders relating to the child B, born … 2001, (“the child”) are discharged.

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

3. The child shall live with the mother.

4. The parties are restrained from causing or allowing the child to spend any time with, or to remain in the immediate vicinity of, the father.

5. Pursuant to s 68B of the Family Law Act the father is restrained from entering upon or approaching within 100 metres of:

   (a)The mother’s residence; and

   (b)Any school attended by the child.

6. Each of the parties shall take all reasonable steps to ensure that the child is able to communicate with the father in the following manner:

   (a)By the father being able to send letters, cards, and/or gifts to the child on or about dates proximate to Father’s Day, the child’s birthday, and Christmas Day; and

   (b)By the child sending to the father any letters, cards, photographs, or other written communication she wishes to convey to the father.

7. For the purposes of implementation of Order 6 hereof:

   (a)The mother shall, within seven days hereof, notify the father and thereafter keep him informed in writing of the address to which mail for the child may be sent; and

   (b)The father shall thereafter keep the mother informed in writing of the address to which mail may be sent to him by the child.

8. Within seven days hereof the mother shall cause the child to be delivered to the Independent Children’s Lawyer to have explained to her the effect of these orders, and if deemed appropriate, the reasons for such orders.

9. Leave is granted to the mother to provide a sealed copy of these orders to the principal of any school attended by the child.

10. Pursuant to s 65DA(2) and s 62B of the Family Law Act, particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders, and details of assistance to comply with these orders are set out in the attached Fact Sheet, which forms part of these orders.

11. The Independent Children’s Lawyer is discharged upon the expiration of any applicable appeal period.

12. Any and all outstanding applications are dismissed.

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

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 759 of 2014

Ms Fairburn

Applicant

And

Mr Godfrey

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

1. This litigation concerns the vulnerable 13 year old daughter of the parties.

2. Originally, the parties contested the child’s residence, but the father recently relented and acknowledged the child should continue to live with the mother. Their dispute was therefore narrowed to, essentially, two issues.

3. The first was whether, and if so under what circumstances, the child should spend time with the father.

4. The second was whether the parties should have equal shared parental responsibility for the child, or alternatively, whether parental responsibility for her should repose exclusively in the mother.

History

1. The parties have quite different memories of the duration of their relationship and their experiences within it, though it is unnecessary to resolve many of those disputes.

2. The mother deposed they began cohabitation in 1991 and finally separated in 2005, whereas the father deposed they began cohabitation in 1993 and finally separated in 2002. Regardless, the child who is the subject of these proceedings was born in 2001 while they were cohabiting.

3. The mother had a child from an earlier relationship (“C”) but, other than for relatively short periods immediately after the parties began cohabitation and immediately before they separated, she did not live with the parties.

4. The parties had two other children during their relationship, but these proceedings do not concern them. The eldest child, born in 1994, died prematurely when very young. The second child, born in 1995, is now an adult.

5. This is the second bout of litigation between the parties.

6. The first proceedings, which related to the two living children of the parties, was commenced by the mother in late 2005 in the Federal Magistrates Court (as the Federal Circuit Court was then called) and was concluded by final consent orders made in August 2006. The orders provided for the parties to have equal shared parental responsibility for the children and for the children to live with the mother. The orders also provided for the children to spend time with the father on weekends, during school vacations, and on other special occasions, though provision was made for the eldest child to spend slightly more time with the father during school terms.

7. Those orders quelled the parties’ dispute for many years, but the arrangements were not implemented without variation or complication. In particular, the eldest child changed residence to live with the father in September 2007, to which arrangement the mother acquiesced by February 2008.[1]

   [1] Mother’s affidavit, paras 47-52

8. The current litigation, which concerns only the youngest child (“the child”), was started by the mother in March 2014, following the father’s refusal to return the child to her after she visited him during the school vacation in January 2014. The parties have different perceptions about whether the father detained the child[2] or whether the father simply acceded to the child’s desire,[3] but nothing now really turns on the determination of that factual dispute.

   [2] Mother’s affidavit, paras 65-75

   [3] Father’s first affidavit, paras 26-43; Family Report, para 7

9. The child remained living with the father and did not begin spending time with the mother until after the parties conferred with the Family Consultant in

   
   

   May 2014.[4] The child then began weekend visits with the mother until, in

   
   

   June 2014, the mother refused to return the child to the father.[5] That prompted the father to make an interim application for the return of the child to his care, which was determined by orders made by the Federal Circuit Court in

   
   

   July 2014. The orders provided for the child to continue living with the mother and to begin spending time with the father on alternate weekends.

   [4] Mother’s affidavit, para 87

   [5] Mother’s affidavit, paras 88-106

10. Shortly thereafter, in September 2014, the child made allegations of her sexual assault by the father, by the digital penetration of her anus. The allegation was investigated and substantiated. An apprehended violence order was procured by police against the father for the child’s protection,[6] which order then prevailed over the antecedent interim parenting orders, and so the child ceased spending time with the father.

    [6] Mother’s affidavit, Annex F

11. When informed of the nature of the allegation made against the father, the Federal Circuit Court transferred the proceedings to this Court for determination. The proceedings were entered into the Magellan protocol and interim orders were made in November 2014, with the father’s consent, precluding the child from spending time or communicating with him. Those orders were consistent with the apprehended violence order made by the State court, precluding any interaction between him and the child.[7] Once the Family Report was available the proceedings were fixed for trial in May 2015.

    [7] Orders and notations made on 14 November 2014

The proposals

1. The mother sought the orders specified in her Amended Initiating Application filed on 17 April 2015, which provided for her to have sole parental responsibility for the child and for the child to live with her. The mother was opposed to any future interaction between the child and the father, but was prepared to countenance supervised interaction between them if the Court found the father posed no unacceptable risk of harm to her.

2. The father sought the orders set out within his Amended Response filed on

   
   

   16 March 2015. He accepted the child should live with the mother, but sought that he and the mother have equal shared parental responsibility for her.

3. The father’s actual proposal about his future interaction with the child was clouded with uncertainty. He sought orders in his Amended Response for the child to spend time with him, which time he accepted should be supervised if the Court concluded he posed an unacceptable risk of harm to her. However, his oral evidence was quite different. He saw no impediment to the child spending unsupervised time with him on alternate weekends and for half of school vacations, which replicated the regime imposed by the orders formerly made in August 2006 and July 2014. Such a proposal implied his rejection of any suggestion he posed any risk of harm to the child.

4. The Independent Children’s Lawyer did not reveal his proposal until after the evidence was closed. His proposal was outlined orally. No minute of orders was tendered. In essence, he sought allocation of sole parental responsibility to the mother, for the child to live with the mother, and for an injunction to restrain any personal interaction or communication between the child and the father. His proposal was therefore aligned with the mother’s proposal.

The evidence

1. Given the father’s alleged sexual abuse of both the child and C were pivotal issues in the proceedings, a procedural order activated s 69ZT(3) of the Family Law Act 1975 (Cth) (“the Act”), thereby applying the rules of evidence to any evidence adduced in respect of those specific issues.[8] Some of the mother’s evidence was struck out as a consequence.

   [8] Order 4 made on 23 February 2015

2. The mother relied upon her affidavit, filed on 17 April 2015, and the affidavit of C, filed on 15 May 2015. The latter affidavit should have been filed and served over a month before,[9] but leave was granted for the mother to rely upon it nonetheless. The father admitted he was not unduly prejudiced.

   [9] Order 5 made on 23 February 2015

3. The father relied upon his two past affidavits filed on 8 April 2014 and

   
   

   18 July 2014. He did not file a more recent affidavit, as was permitted.[10] His solicitor ceased representation of him in April 2015 and he did not himself attend to preparation of a more recent affidavit.

   [10] Orders 5 and 7 made on 23 February 2015

4. The parties and the Independent Children’s Lawyer also relied upon:

   (a)The Magellan Report, dated 4 November 2014, furnished to the Court by the NSW Department of Family and Community Services (“the Department”); and

   (b)The Family Report, dated 10 December 2014.

Legal principles

1. Orders in respect of children are regulated under Part VII of the Family Law Act (“the Act”). The Act defines the meaning of a “parenting order” (s 64B).

2. When invited to make a parenting order, the Court is enjoined to bear in mind both the objects of the legislation and the principles which underpin those objects (s 60B) in determining the nature of the parenting orders which ought properly be made (s 65D).

3. When making parenting orders the Court is mandated to regard the child’s best interests as the paramount consideration (ss 60CA, 65AA). The Act specifies with precision the criteria which the Court must contemplate in arriving at a conclusion as to what is in the best interests of the child (s 60CC).

4. The Court is required to apply a rebuttable presumption that a child’s best interests are served by an order allocating equal shared parental responsibility for the child to the parents (s 61DA). Parental responsibility is defined to encompass all duties, powers, responsibilities and authority conferred by law upon parents (s 61B). The legislation dictates the manner in which equal shared parental responsibility is to be exercised in respect of decisions relating to “major long-term issues” concerning the child (s 65DAC), being matters such as education, religion, culture, health, name, and changed living arrangements (s 4), and also in respect of decisions which do not relate to such significant issues (s 65DAE).

5. The presumption of equal shared parental responsibility does not apply in certain circumstances, including in instances of child abuse and family violence (s 61DA(2)), and the presumption may be rebutted if the Court is satisfied it would not be in the best interests of the child for the parents to have equal shared parental responsibility for the child (s 61DA(4)). The presumption says nothing about the amount of time the child should live or spend time with each parent, but the manner in which parental responsibility for the child is allocated by the Court may bear on that issue.

6. In the event an order is made allocating equal shared parental responsibility to the child’s parents, either presumptively or otherwise, the Court is then obliged to consider both the advisability and practicability of the child living for equal time with both parents, or alternatively, living primarily with one and spending substantial and significant time with the other (s 65DAA).

7. If parental responsibility for the child is allocated in some other way, then the Court’s discretion is at large in the determination of the parenting orders warranted, though the discretion must still be exercised in the context of the child’s best interests being the paramount consideration.

Child’s best interests – primary considerations

Section 60CC(2)(a)

1. Comparatively little evidence was addressed to the quality of the child’s relationships with both parents or the benefit she derives from those relationships.

2. The Family Consultant observed the child in the company of the mother, her partner, and C, but the child’s interactions with them were described as “extremely limited” and so the observation session was “very short”.[11] The child told the Family Consultant that “things were going well living with the mother”, but it seems the child spends much of her time either alone or in the company of C.[12]

   [11] Family Report, para 68

   [12] Family Report, paras 63-64

3. Inferentially, the child’s relationship with the mother is rather mechanical and she does not seem to derive much emotional succour from it. Nevertheless, the relationship is of some significance and benefit to her. Neither the father nor Independent Children’s Lawyer suggested otherwise.

4. The Family Consultant did not observe the child in the company of the father because the criminal investigation of the sexual assault allegations against the father was possibly still pending,[13] though an interim parenting order expressly permitted the Family Consultant to observe the child and father together if she deemed it appropriate.[14] The father did not complain about the lack of any observation session between them.

   [13] Family Report, para 67

   [14] Order 5(c) made on 14 November 2014

5. The child certainly now evinces some ambivalence about the father. She told the Family Consultant she “hate[d]” the father, she was uncertain about wanting to see him, and she wanted the Court to decide whether she should.[15]

   [15] Family Report, para 65

6. The child has not now seen or communicated with the father since September 2014. Inevitably, there must have been some deterioration in their relationship, but her ambivalence about the father suggests it would still be possible to salvage their relationship. They lived together for six months between January and June 2014 and, at least according to the father’s evidence, they formerly enjoyed a stable relationship. The child would not have completely forgotten that history.

7. However, the advisability of restoration of the child’s relationship with the father was entirely dependent upon findings about any risk of harm the father poses to her, which requires analysis of the evidence pertinent to the consideration prescribed by s 60CC(2)(b) of the Act. Since these proceedings were not commenced until March 2014, the need to protect the child from any risk of harm now carries greater weight as a consideration than the desirability of her deriving benefit from a meaningful filial relationship (s 60CC(2A)).

Section 60CC(2)(b)

1. Unfortunately, the evidence adduced in these proceedings was replete with allegations made by and against both parties which proved the child was at risk of harm through her subjection or exposure to abuse, family violence, and neglect. The child has been the subject of 49 separate reports to the Department about her exposure to risks of harm. Not less than 30 of the reports were considered serious enough to warrant investigation[16] and on several occasions the Department concluded the child was at risk and in need of care and protection.

   [16] Magellan Report, page 10

Subjection to sexual abuse

1. The evidence established the child was at risk of harm through her sexual abuse by several men: the father and two men with whom he associates, they being Mr D (“Mr D”) and Mr E (“Mr E”).

2. Evidence was also adduced about risks of harm posed to the child by the mother’s partner, Mr F (“Mr F”), and the parties’ older child.

3. The risks those men individually pose differ in the degree of virulence and so it is best to address the evidence in relation to each of those persons separately.

4. The evidence against the father amounted to an aggregation of incidents, the most serious of which was an allegation of his actual sexual abuse of the child by his digital penetration of her anus in bed one night during August 2014.

1. Both the mother and Independent Children’s Lawyer submitted the evidence permitted – indeed warranted – a factual finding that the father sexually abused the child. Despite the High Court’s exhortation to generally refrain from making positive findings that allegations of sexual abuse are true (see

   
   M & M

   (1988) 166 CLR 69 at 76-77), the particular circumstances of this case invite, if not impel, such a finding. Notwithstanding the gravity of the allegation, for the reasons which follow, the evidence was sufficient to satisfy the civil standard of proof (s 140 Evidence Act1995 (Cth)).

2. On 4 September 2014, the child was interviewed by a police officer at her school. The audio/visual record and transcript of the interview, which lasted an hour, were tendered in evidence.[17] During that interview the child gave a clear and coherent account of how, some weeks before, she was molested by the father in his bed. He rubbed her chest and then penetrated her anus with his finger. Her account was replete with intricate detail of what occurred before, during, and after the incident and, significantly, her demeanour was completely consistent with her story. She was hesitant and embarrassed at times. She needed to be cajoled to reveal the most intimate of the details. None of the questions posed were loaded with suggestion.

   [17] Exhibit ICL1

3. Although the child has not been challenged about the truth and accuracy of her allegations, her unrehearsed performance during the interview was powerfully persuasive. Even the father sat transfixed in silence while the audio/visual recording was played in Court, after which he was noticeably more despondent and withdrawn.

4. The father denied the allegations of sexual abuse to the Family Consultant,[18] but he did not depose to his denial in any affidavit filed after the allegations were made in September 2014. That, however, may well be explained by his lack of legal representation. No adverse inference should be drawn, particularly since he was willing to be interviewed by police in September 2014 and to submit to cross-examination about the allegations in these proceedings.

   [18] Family Report, para 69

5. The transcript of the father’s formal interview with police, also conducted on

   
   

   4 September 2014, was tendered in evidence.[19] Notably, his version of events given during the police interview was materially different from the version of events he gave during his cross-examination. He told the police the child only once came to his room during the night, some four or five months before, and he put her back in her own bed.[20] He expressly denied the allegation of sexual abuse.[21] However, in cross-examination he said he remembered the child came into his room one night on an occasion after she resumed alternate weekend visits with him (which was no earlier than only the month before), but he could not remember any more. He could not remember what he said to her, whether she went back to her own bed, or whether she got into his bed. The events he described of earlier that day and of the next day all correlated with the child’s description to police of the events on the days preceding and following the night on which the father sexually abused her.

   [19] Exhibit ICL2

   [20] Exhibit ICL2, Q.106-111, 194-202

   [21] Exhibit ICL2, Q.280-281

6. The father conceded in cross-examination the version he then gave was different to the version he gave to police some months before. He said he must have been mistaken. It is unnecessary to decide whether he was mistaken or whether he was untruthful – either when speaking with the police or when giving evidence in Court. His inconsistent accounts of that evening and the lack of recollection he now professes, in circumstances where he admitted he was intoxicated over that particular weekend, necessarily means much less weight can be reposed in his denial of the sexual abuse allegations. His explanations to both the police and the Court were far less persuasive than the account given to police by the child.

7. When asked by the Family Consultant to discuss why the child would have falsely alleged his sexual abuse of her, the father asserted the mother would likely have coached her to do so.[22] He earlier told the police the same thing.[23] There are two persuasive reasons why that is unlikely.

   [22] Family Report, para 70

   [23] Exhibit ICL2, Q.286

8. First, the mother knew nothing of the allegations. She was away on a short holiday between 1 and 4 September 2014 and the child was supervised at home by C. The child was interviewed on 4 September 2014 and she made the allegations before the mother returned home. She only told some of her school friends in preceding weeks and the information leaked out to the Department, causing the police to interview the child at school.[24] The child told the police during her interview she had not told the mother. Since then, the child has told C, but still not the mother. Even so, the child only told C the father “touched [her] some place uncomfortable” and did not regale her with the detail she divulged to police. Accordingly, the child’s allegations have not been the subject of repetitive discussion in the mother’s home.

   [24] Exhibit ICL2, Q.170-174, 287-288

9. Second, it is uncontroversial the child has a mild intellectual disability.[25] She is unsophisticated and it is doubtful she has the capacity to be convincingly devious. The father told police he regarded the child as “very honest”.[26] She presented during the interview as candid and did not appear to embellish. Her account seemed like a recount of actual events rather than the recitation of a rehearsed story.

   [25] Family Report, para 60

   [26] Exhibit ICL2, Q.158

10. The father cannot derive comfort from the fact he has not been charged with any offence by police. The absence of prosecution does not preclude a finding in civil proceedings that he probably acted as alleged. The police did obtain an apprehended violence order against the father for the child’s protection for a period of three years, to which order the father consented. It precludes the father from approaching or contacting the child, other than through a lawyer or pursuant to a parenting order under the Act.[27] Although the father believes any prospective prosecution of him has been “dropped” by police, there is no evidence to confirm the investigation is terminated.[28] Why the father has not been prosecuted remains curiously unanswered, particularly since the police considered the sexual assault allegation to be “substantiated” and the father posed a “high” risk of harm to the child.[29] Nevertheless, the chance of the father being prosecuted recedes with the passage of time.

    [27] Mother’s affidavit, Annex F

    [28] Family Report, paras 71, 105

    [29] Magellan Report, page 17

11. The concern about the father’s willingness to sexually abuse the child is heightened by other aspects of the evidence, which suggested his proclivity to take sexual advantages with females, irrespective of their age.

12. The father acted with sexual menace towards C on numerous different occasions when she was adolescent. During the course of several months in late 2005, while C lived with the parties, the father:

    (a)Made sexualised comments to her, such as:[30]

    That looks sexy (in reference to her clothing)

    Come and give me a blow job (while exposing his penis)

    You’re nothing but a little trollop

    You little prick teaser

    (b)Left a pink penis-shaped dildo on her pillow as a present for her birthday.[31]

    (c)Got into bed with her and lay next to her with an erect penis.[32] 

    [30] Affidavit of C, paras 11-13; Family Report, para 82

    [31] Affidavit of C, para 13; Family Report, paras 81-82

    [32] Affidavit of C, para 18; Mother’s affidavit, paras 29-32; Family Report, p 81

13. The state of the evidence about the last of those incidents was less than completely satisfactory because, although C deposed to its occurrence in her affidavit affirmed in May 2015, she was unable to remember the incident when asked about it by the Family Consultant only months before in December 2014.[33] Nevertheless, the father’s evidence about all of those incidents was also less than satisfactory. His response, to both the Family Consultant[34] and in cross-examination, comprised a jumble of denial and professed lack of memory. The prospect that C exaggerated some of the evidence could not be discounted, but it seemed quite improbable from her cross-examination that it was all entirely fabricated.

    [33] Family Report, para 82

    [34] Family Report, para 83

14. The mother deposed to her experience that the father was generally disinhibited and acted “impulsively on his sexual urges”.[35] That rings true, since the father was later convicted in 2007 for his assault and the commission of an act of indecency upon a neighbour. The father declined to be interviewed by police in relation to the incident because he maintained his intoxication deprived him of any memory of the event. Nonetheless, he pleaded guilty to the offence.[36]

    [35] Mother’s affidavit, para 63

    [36] Family Report, para 86; Exhibits M5 and M6

15. In 2010, the father was again charged with an offence of assault and the commission of an act of indecency upon another adult female, but that charge was ultimately dismissed when the police discontinued the prosecution.[37] The decision to discontinue the prosecution, which may have been motivated by a variety of considerations, did not mean the allegation was untrue, but the father’s presumption of innocence in respect of the charge remains undisturbed. In the absence of any opportunity to test the complainant’s uncorroborated allegation against the father to police, little weight can be reposed in the hearsay police report.

    [37] Family Report, para 88; Exhibits M2 and M6

16. There are other ways in which the father indirectly poses a risk of harm to the child. He fails to properly supervise and protect her from other men who do pose a danger to her.

17. In 2004, an allegation was made to the Department that the child was left in the care of a friend by the father, which friend had been the subject of a prior investigation for child sexual assault.[38] The allegation was apparently not investigated.

    [38] Family Report, para 84; Magellan Report, page 10

18. In 2011, an allegation was made that the child was sexually assaulted by

    
    

    Mr D, who was an older child of a friend of the parties. The evidence about the incident is scant,[39] but the mother contended the allegation was investigated and substantiated. The mother alleged the father continued to allow the child to stay overnight in the D’s household, which the father did not deny. He merely said he did not believe the allegations of sexual abuse made against

    
    

    Mr D because he later asked the child about it and she told him “it didn’t happen”. Consequently, he was content for the child to continue visiting the D’s household. The father said in cross-examination he thought the mother “put the child up” to fabricate those allegations, as he earlier told the Family Consultant,[40] which was foolish because he had no reasonable grounds to think so. An interim injunction precluding the child’s contact with Mr D was made during the course of these proceedings.[41] The order was not apparently made with the father’s consent, suggesting he did not agree with its necessity.

    [39] Family Report, para 89; Mother’s affidavit, para 86

    [40] Family Report, para 90

    [41] Order 2 made on 28 July 2014

19. Mr E is a very close friend of the father.[42] He formerly lived with the father and may still do so, despite the father’s denial, because he answered the father’s home telephone to the Family Consultant in December 2014.[43]

    
    

    Mr E has a past conviction for indecent assault, which was committed as recently as 2012.[44] An interim injunction was made in July 2014 precluding the parties from allowing the child any contact with Mr E,[45] but the father did not ensure his compliance with that injunction. When the child was interviewed by police in September 2014 she told them Mr E was at the father’s home when she visited.[46] The father confirmed in cross-examination that was true, albeit he contended Mr E’s visit was brief. Self-evidently, the father was either unable or unwilling to enforce the injunction properly.

    [42] Family Report, para 216

    [43] Family Report, para 31

    [44] Family Report, paras 94, 218

    [45] Order 2 made on 28 July 2014

    [46] Exhibit ICL1, Q.58-60

20. The evidence established the child remains at risk of harm through sexual abuse while in the father’s care. That risk is posed by the father himself and by his failure to ensure her isolation from, or at least proper supervision with, other men like Mr D and Mr E.

21. Shortly after the father retained the child in his care in January 2014, an unidentified person alleged to the Department that the parties’ eldest child tried to force the child to have sexual relations with him, but the allegation was not investigated.[47] The eldest child was interviewed by the Family Consultant and he denied the allegation.[48] The mother said in cross-examination she did not believe the eldest child would have acted in that way and, inferentially, nor did the father, since he wanted the child to continue spending time with him and the eldest child at his home. The evidence was far too weak to permit any finding the eldest child poses a risk of harm to the child.

    [47] Magellan Report, pages 8, 16

    [48] Family Report, para 93

22. The father made past allegations that Mr F sexually assaulted the child. He did so in both 2006[49] and 2008.[50]

    [49] Family Report, para 85

    [50] Family Report, para 87

23. In 2006, the father reported to police the child told him Mr F had “touched her inappropriately”, but the police found the father to be “adversely affected by alcohol” and his complaint about the child was attended by a litany of other complaints about the mother and Mr F. When pressed for precise detail, the father conceded the child’s disclosure about Mr F involved her answering “yes” to his loaded question “has [Mr F] touched you?” The police were puzzled why the father would have raised the subject with the child and recorded they were “unsure whether he has suggested the incident to the child to enhance his chance of success with gaining full custody, or whether there is a problem”. Since there was “no clear disclosure” by the child, the allegation was not investigated further.[51]

    [51] Exhibit M3

24. In 2008, the father summoned police urgently to report the child told him she had been “touched on the wee wee” by Mr F. The police arrived to find the father “sitting on the front lawn cradling [the child] in his arms and crying hysterically”. The police formed the view the father was intoxicated. The child did confirm to police Mr F had touched her on the genitals but, when she was subsequently formally interviewed, the police concluded she was “not of a level to be deemed competent for court” and there was no disclosure of sexual abuse. The allegation was not substantiated and no further action was taken.[52]

    [52] Exhibit M4; Family Report, para 87; Magellan Report, page 11

25. The allegations of impropriety against Mr F are not, however, confined to his interaction with the child. In 2009, Mr F was convicted for indecent assault of a woman aboard a courtesy bus, for which he was sentenced by way of good behaviour bond.[53]

    [53] Family Report, paras 91-92

26. Mr F clearly does pose some level of risk to the child’s sexual safety, but the state of the evidence does not fairly permit the risk to be characterised as unacceptably high. The mother intends maintaining her domestic relationship with Mr F so it will be necessary for her to be vigilant in her supervision of the child around him. She knows Mr F is willing to lie to advance his own interests, so she cannot rely upon his word about the propriety of his conduct with the child. The mother asserted in cross-examination that Mr F lied to police when he alleged she punched him in the head during a confrontation.

27. The child is now adolescent and much better equipped to protect herself than she was years ago. She is less dependent upon adults. She has friends in her neighbourhood to whom she can turn for protection. From her experience of the police interview in September 2014, she now knows she can report improper advances to her peers at school and her reports will be properly investigated. Those considerations tend to ameliorate the concerns of the Family Consultant about the child’s emotional vulnerability, compliant personality, and willingness to please others.[54] The risk of harm posed to her by Mr F is therefore contained, though not extinguished.

    [54] Family Report, paras 60, 112

Exposure to family violence

1. The mother detailed a long and regrettable history of family violence perpetrated upon her by the father.[55] The Family Consultant observed that “serious physical family violence” perpetrated by the father upon the mother was strongly supported by documents produced on subpoena and admissions made by the father.[56]

   [55] Mother’s affidavit, paras 13-15, 23, 37-41, 80

   [56] Family Report, para 23

2. The mother suffered many bodily injuries at the hands of the father, including bruising and sprains, and the police were called to their violent disputes on many occasions. The father was convicted of assaults upon the mother in both 1996 and 1998.[57] In both 2002 and 2005, apprehended violence orders were made against the father for the mother’s protection.

   [57] Exhibits M6, M7, M8

3. The father’s contempt for and disrespect of the mother is as pernicious as ever. He still yells at her and criticises her, using derogatory terms like “stupid slut” and “fuckin’ bad mother”. Such behaviour is still liable to fall within the broad embrace of “family violence” (s 4AB(2)(d)), even though the father may not appreciate it. Regardless of whether the father admits his denigration of the mother in that way, he similarly alleged the mother is “aggressive” and “insulting” to him.[58] Consequently, whether one or both of them is responsible for the antipathy, there is no doubt it exists, nor is there any doubt it punctuates their communication to such an extent that both desire communication between them be eradicated.

   [58] Father’s first affidavit, para 15

4. Whether the parties finally separated in 2002, as the father said, or 2005, as the mother said, it is quite extraordinary that their interaction is still as spiteful after the elapse of more than a decade. Even as recently as 2013, there was a physical altercation involving the mother, her partner, and the father over the exchange of the child.[59]

   [59] Father’s first affidavit, paras 16-17

5. The child was exposed to much of the parties’ hostile conflict. The only reason her exposure has now ceased is because, since September 2014, she has not seen or communicated with the father and so the parties have had no need to communicate. Were it otherwise, no doubt their heated conflict and the child’s exposure to it would resume.

6. Unfortunately, the mother’s home has not been a sanctuary for the child from exposure to family violence. The mother has been in a domestic relationship with Mr F for many years. The police have often needed to intercede in their arguments.[60] The mother attempted to minimise the severity of their fractious relationship when discussing it with the Family Consultant,[61] and also during cross-examination, when she conceded only the occurrence of heated arguments and denied any physical altercations between them. In all probability, the mother and Mr F did and still do have a querulous relationship and I accept as correct the Family Consultant’s opinion that the child remains exposed to family violence in the mother’s home.[62]

   [60] Father’s first affidavit, paras 14, 21, 22, 24, 42

   [61] Family Report, para 29

   [62] Family Report, para 111

7. There is still a pressing need to protect the child from harm she would suffer by reason of her exposure to family violence by the father, Mr F, and the mother, but while she can be protected from future violence between the parties, she cannot be adequately protected from violence between the mother and Mr F.

1. The child can be protected from violence between the parties by orders which do not require her to spend time or communicate with the father, which means the parties will have no need for any interaction themselves. However, given the child will continue to live with the mother and, for the foreseeable future, Mr F will remain a member of their household, nothing can be practicably done to protect her in that domain. The imposition of an injunction restraining the mother from allowing the child’s exposure to family violence committed between her and Mr F would be a pointless artifice. If the mother is sufficiently aggravated to assault Mr F, her aggravation will not let her pause to ensure the child is first removed. If Mr F is inclined to assault the mother, she will have no time to remove the child beforehand. The mother will hardly comply with an injunction which had the effect of precluding her from allowing the child and Mr F to live in the same house.

Subjection to neglect

1. Past findings by the Department about the child being at risk and needing care and protection were made when the child was in the mother’s care in 2008, 2011, and 2013. Those findings arose, at least in part, from long-standing concerns about the child’s neglect and lack of physical care by the mother.[63]

   [63] Magellan Report, pages 5, 6, 8, 10, 11, 12, 13; Family Report, paras 97-98

2. The Family Consultant hypothesised that the child’s presentation to the Department as a “chronically neglected child” tended to suggest the mother’s pattern of alcohol use had been “problematic”, despite her denials.[64]

   [64] Family Report, para 26

3. Ultimately, in November 2013, the mother and Department reached agreement on a “safety plan” for the child, which required the mother to immediately attend to the child’s dental and medical needs and for her to submit to regular progress reviews. The Department only regarded the child as safe if the mother adhered to that plan.[65]

   [65] Magellan Report, page 14

4. In December 2013 and January 2014 the Department conducted risk assessments about the child’s care by the mother. The first concluded the risk of harm was “very high”, but the second concluded the risk of harm was “moderate”. The Department were not satisfied with the level of the mother’s compliance with the existent safety plan, though there had been “changes for the better”.[66]

   [66] Magellan Report, pages 15-16

5. The Department was advised in early February 2014 that the child had commenced to live with the father and further investigation was closed, since the Department “had no current reports on the father”.[67] The Family Consultant said in cross-examination that school staff reported to her the child’s physical presentation at school was better when living with the father.

   [67] Magellan Report, page 16

6. The child visited the mother in June 2014 and did not then return to live with the father. When the Department subsequently investigated the allegations of the father’s sexual abuse of the child in September 2014, Departmental staff found the child’s general appearance much better than before. She was clean and she did not look tired. She appeared to be adequately fed and the child told staff “it is better at [the] mother’s home now”. Some weeks later, Departmental staff visited the child at school and at home. The child “presented well and there were no concerns noted”,[68] though a month later the Department staff were concerned the mother may not diligently prioritise the child’s need for sexual assault counselling.[69]

   [68] Magellan Report, page 18

   [69] Magellan Report, page 19

7. When the child attended upon the Family Consultant for interview in December 2014 she presented as “currently physically as well cared for [sic]”.[70] The mother also reported the child’s dental work is complete and she was attending for sexual assault counselling.[71]

   [70] Family Report, para 60

   [71] Family Report, para 62

8. The Family Consultant observed that the child’s development through her childhood would certainly have been compromised by neglect and other adverse experiences she endured while in the mother’s care,[72] though the evidence suggested the mother’s parenting performance has materially improved since the child returned to live with her in June 2014. The risk of the mother’s parenting standards again falling below acceptable levels, thereby exposing the child to further harm through neglect, remains pronounced. However, the risk of the child’s harm through neglect is not as serious as the risk of the child’s harm through her subjection or exposure to abuse and family violence.

   [72] Family Report, para 111

Child’s best interests – additional considerations

1. Aside from the reasons already addressed, the parenting capacity of both parties is impaired by reason of their use of alcohol and illicit drugs.

2. Excessive alcohol consumption was plainly an aggravating factor in past confrontations between the mother and Mr F, when police were summoned to their disputes. The mother conceded her continuing use of both alcohol and cannabis, though she contended her use was now in more moderate amounts than before.[73] In cross-examination she admitted she still drank several alcoholic drinks every day. It may be the mother has moderated her consumption, but the evidence fell short of proof she is now always sober and available to meet the child’s needs in all respects.

   [73] Family Report, paras 19-20

3. Excessive alcohol consumption demonstrably remains a problem for the father. His glib assertions, both to the Family Consultant[74] and in cross-examination, to the effect that alcohol had never been a problem for him at any time in the past were pathetic delusions.

   [74] Family Report, para 38

4. In 2002, the father told his doctor he drank 2-4 litres of port wine and smoked one-quarter of an ounce of cannabis each day.[75] He was referred for detoxification,[76] but he admitted that therapy only lasted a week.

   [75] Exhibit ICL3

   [76] Family Report, para 38

5. In 2004, the father told the doctor he had decreased his rate of alcohol consumption to one litre of port and one-half case of beer each day.[77] The father said he attended another rehabilitation facility at about that time for another week.

   [77] Exhibit ICL3

6. Some years later he attended another residential rehabilitation facility, but remained for only one week of the stipulated nine month course. He said he left voluntarily because some person informed him he was not alcoholic.

7. The father’s past attempts at rehabilitation were unsuccessful. On many subsequent occasions the police found him intoxicated.[78] The parties’ eldest child told the Family Consultant in December 2014 that the father still drank himself into a state of intoxicated sopor up to twice each week, which the father then admitted.[79]

   [78] Family Report, para 39

   [79] Family Report, paras 40, 57

8. The mother said in oral evidence that on most occasions since separation when she either met with the father to exchange the child or spoke with him over the telephone he seemed intoxicated and was slurring.

9. During cross-examination the father estimated the child’s visits with him had been spoiled “about half the time” because of his alcohol consumption. The father was often so stupefied his supervision of the child on weekend visits was either deficient or non-existent.

10. The father tendered a certificate of his proficiency as a “basic firefighter”, awarded to him in 2004.[80] He believed it proved his sobriety at that time, apparently on the basis he could not have been a proficient firefighter if he was regularly intoxicated. It proved no such thing. His admissions to his doctor in 2004 about his alcohol consumption are far more probative.

    [80] Exhibit F1

11. The father said it was easy to abstain from alcohol use. He asserted he had done so for two weeks immediately preceding the trial and it was his intention to remain abstinent. He suggested that any concern about his alcohol consumption could be cured by an order requiring his indefinite weekly submission to “blood and urine tests”, but he was misconceived. Upon completion of the proceedings the father’s sobriety could not be so frequently monitored, either by the mother or anyone else, as an indefinite condition-precedent to the child’s continuing interaction with him. Inevitably, there would be further dispute about his compliance, the continuing cost of the tests, or the meaning of the tests results.

12. Unfortunately, the father has no reliable family support. The paternal grandmother is deceased and he sees nothing of the paternal grandfather or his siblings.[81] His own adult children are either deceased or he has no contact with them.[82] The only child he now sees is the parties’ eldest child, who still lives with him. Some of the friends to whom the father referred are unsavoury. He has no help to improve his parenting performance.

    [81] Family Report, para 34

    [82] Family Report, para 36

Conclusions and orders

1. The past family violence that undoubtedly occurred between the parties now renders the presumption of equal shared parental responsibility inapplicable

   
   

   (s 61DA(2)).

2. Although equal shared parental responsibility could still be allocated to the parties, it should not be, unless the evidence demonstrated such an outcome would promote the child’s best interests. Clearly, the evidence does not suggest any such thing. The parties are highly antagonistic and incapable of engaging in civil discussion about issues of importance in the child’s life. The chances of them making a genuine effort to compromise their differences over the child are very remote. Only one of the parties can feasibly exercise parental responsibility for the child. The party with whom the child lives should have exclusive parental responsibility for her and, since there is no controversy the child should live with the mother, she should have parental responsibility for the child.

3. In such circumstances, there is no obligation to consider regulating the child’s living arrangements in any prescriptive way (s 65DAA).

4. Although it was agreed the child would remain resident with the mother, it should be observed in passing that the foreclosure of the child’s residence as an issue in the proceedings is unlikely to be an immediate solution to her woes. The Family Consultant was moved to observe, without any attempt at contradiction:[83]

   …issues of concern identified by the family consultant are the harm that [the child] has experienced in both households and the future risk of harm for [the child] in both households.

   It is apparent that historically neither parent has acted to prioritise [the child’s] needs.

   The father is clearly not appropriate to provide care for [the child]…

   There are also, however, clear concerns for [the child] in the mother’s household.

   [83] Family Report, paras 12, 113-115

5. The Family Consultant catalogued the impairments she perceived to the parenting capacity of both the mother and the father.[84] She was not challenged about the accuracy of any of those observations, which I accept as correct.

   [84] Family Report, paras 114-115

6. The shortcomings of both parties were the impetus for an earlier order inviting the Department to intervene in the proceedings, but the invitation was declined, even before the father abandoned his residential application for the child.[85]

   [85] Family Report, para 116

7. Given the child will remain resident with the mother, the child’s future interaction with the father requires consideration.

8. The mother and Independent Children’s Lawyer both submitted for the imposition of an injunction precluding any personal interaction or communication between the child and father. That proposal enjoyed the support of the Family Consultant, if the Court found the father probably sexually abused the child.[86]

   [86] Family Report, para 120

9. Simply stated, the evidence supports a permanent restraint of the child spending any time with the father, but not upon occasional written communication between them.

10. The child should not spend time with the father for several reasons.

11. First, he probably sexually abused her and he remains a sexual danger to her.

12. Second, he fails to appreciate the sexual danger posed to the child by the likes of Mr D and Mr E and he gives no confidence he would keep the child safe from those men. He conceded his past failure to comply with the interim injunction concerning Mr E.

13. Third, the imposition of supervision upon visits between them would not be a satisfactory solution to the risk of the child’s harm. It might prevent the child’s actual sexual abuse, but it would not avert potential psychological harm to the child and it would certainly induce great anxiety in the mother.

14. The child must now know her allegations of sexual molestation against the father resulted in the termination of any contact between them. Orders compelling their re-introduction would likely be damaging to the child. She would wonder why she was forced to confront the parent she rightfully accused of abusing her, about which she would be acutely self-conscious, and she would be alarmed at the apparent failure of the Court and other authorities to protect her from that predicament. Even if, as the father asserted, her allegations were untrue, she would need to deal with the stress of having to resume her relationship with the father in the knowledge she betrayed him. The father’s lack of insight into those complications manifests a deficit in his parental attitude, as the Independent Children’s Lawyer submitted.

15. The mother truly believes the father sexually abused the child, which belief was vindicated by the evidence. She would be disturbed by the prospect of having to enforce orders compelling the child to visit the father, when that is the last thing she would want happen.

16. Fourth, the father continues to pose a risk of psychological harm to the child by his enduring willingness to expose the child to family violence perpetrated by him. There was no sign the father would modify his behaviour in that regard.

17. Fifth, imposing orders requiring the supervision of the child’s visits with the father for the remainder of her minority would be highly problematic, since long-term supervision is regarded as undesirable (see Moose v Moose (2008) FLC 93-375 at [119]; H & K [2001] FamCA 687 at [40]-[41]; Marriage of Bieganski (1993) 16 Fam LR 353 at 368).

18. Lastly, the father failed to adduce any satisfactory evidence about how indefinite supervision could feasibly work. He simply floated a bare proposition about the supervision being provided by a named person,[87] but the Family Consultant said in cross-examination that person had no recognised qualifications as a supervisor. Nor was there any evidence addressed to the frequency, duration, or venue of the visits. Nor was there any evidence about the cost of the supervision or the source of its payment. The father’s financial predicament is dire and unlikely to enable payment of supervision costs. He said he sometimes had to forego food to ensure the children were fed when they were in his care. It is futile making orders that will likely be breached and thereby invite further litigation.

    [87] Amended Response, Order 3

19. The parties are restrained from causing or allowing the child to spend time with, or to remain in the immediate vicinity of, the father. An additional order is made restraining the father from attending within 100 metres of the mother’s home or the child’s school, which will deter the father from any attempt to catch the child’s attention and entice her conversation with him. Such orders are consistent with the apprehended violence order made against the father on 15 October 2014 by the Local Court of NSW at Toronto.

20. The mother may provide a copy of the orders to the child’s school principal so the school is aware of the situation.

21. I am not, however, satisfied the father should be completely eliminated from the child’s life. Although she is now ambivalent about him, because of his sexual abuse of her and the serious disruption that has caused to the family, the father remains an important figure in her life. The Family Consultant remarked in the Family Report that the child’s affect was inconsistent with her statement that she hated the father,[88] which the Family Consultant seemed keen to emphasise during cross-examination. The child seems torn between her feelings of repulsion towards and love for the father.

    [88] Family Report, para 65

22. While there are compelling reasons to restrain the child’s visits with the father, there is a strong case for retention of the child’s link with him so she has the opportunity of resurrecting their relationship when she attains her majority. Retention of that link is particularly important in light of the mother’s own deficits as a parent and the potential future need for the child to have some person other than the mother to rely upon in her life.

23. Orders are therefore made permitting the child and father to communicate in writing on an intermittent basis. There is no need for that communication to be more frequent than Father’s Day, the child’s birthday, and at Christmas. Such orders are entirely consistent with the current apprehended violence order, which relevantly provides that the father may contact the child “as authorised by a current parenting order under the Family Law Act 1975”.

24. The orders provide for the Independent Children’s Lawyer to explain to the child the orders and, if considered appropriate, the reasons for the orders.

25. The orders set out at the commencement of these reasons are made in the child’s best interests.

I certify that the preceding one hundred and twenty two (122) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 29 May 2015

Associate:

Date:  29 May 2015