Frank & Searle
[2021] FedCFamC1F 220
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Frank & Searle [2021] FedCFamC1F 220
File number(s): LNC 170 of 2020 Judgment of: MCGUIRE J Date of judgment: 26 November 2021 Catchwords: FAMILY LAW – CHILDREN – application by father for child to live with him and have graduated time with the mother – allegations of sexual abuse – whether child is at an unacceptable risk in the unsupervised care of the father – orders that the child live with the mother – the mother have sole parental responsibility for the child – finding of unacceptable risk - father to spend supervised time with the child Legislation: Family Law Act 1975 (Cth) ss 60B, 60CC(2) and (3) Division: Division 1 First Instance Number of paragraphs: 62 Date of hearing: 4 November 2021 Place: Launceston Counsel for the Applicant: Mr Hoskins Counsel for the Applicant: Walsh Day James Mihal Counsel for the Respondent: Mrs Mooney Solicitor for the Respondent: Ian Guest & Associates Counsel for the Intervener: Ms Gibson Solicitor for the Intervener: The Legal Aid Commission of Tasmania ORDERS
LNC: 170 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR FRANK
Applicant
AND: MS SEARLE
Respondent
INDEPENDENT CHILDREN'S LAWYER
Intervener
ORDER MADE BY:
MCGUIRE J
DATE OF ORDER:
26 NOVEMBER 2021
THE COURT ORDERS BY CONSENT OF THE MOTHER AND THE INDEPENDENT CHILDREN’S LAWYER AND ABSENT THE FATHER THAT:
1.That the mother have sole parental responsibility for the child X born … 2015 (‘X').
2.That the mother keep the father advised at all times of all schools, health practitioners and therapists attended by X from time to time and ensure that she provides all requisite authorities to same so that the father is authorised to receive information normally accorded to parents in respect of X.
3.That the mother shall ensure that the father's name is listed as a contact parent of any school attended by X to the intent that the father is entitled to receive information usually received by parents and that he be able to attend school events usually attend by parents.
4.That X live with the mother.
5.That X spend time with the father as follows:
(i)supervised at the B Contact Centre for such periods and for such duration as can be accommodated by the Contact Centre and for these purposes the parents forthwith attend at the B Contact Centre to complete all the preliminaries for the purposes of these Orders, but should the father not enrol at the B Contact Centre within six months of the date of these Orders then his time with X be reserved;
(ii)alternatively, for such time as agreed between the parents and the paternal grandmother such to be strictly supervised by the paternal grandmother or another adult person either nominated or agreed by the mother; and
(iii)any other times or variations of the above as agreed between the parties from time to time.
6.That the mother have leave to provide a copy of her trial affidavit, notice of risk and the family report released 24 March 2021 in these proceedings to any therapist, doctor or counsellor attended by X.
7.That pursuant to s 62B of the Family Law Act 1975 (Cth) information about counselling services, family dispute resolution services and other courses, programs and services available, is set out in the Fact Sheet attached hereto.
8.That pursuant to section 65DA(2) of the Family Law Act 1975 (Cth) the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist the parties adjust to and comply with an Order are set out in the Fact Sheet attached hereto and these particulars are included in these Orders.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym of Frank & Searle has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
McGuire J
APPLICATION
These are parenting proceedings in respect of the parties’ one child namely X born in 2015 (age 6 years).
The applicant is the father. Mr Frank was represented at trial by Mr Hoskins of counsel on a direct brief made through the Legal Aid Commission of Tasmania pursuant to an order made under s 102NA of the Family Law Act 1975 (Cth) (‘the Act’) in circumstances where there have been Family Violence Orders between the parties.
At the commencement of the trial the father sought an order the X live with him and have graduated time with the mother, initially limited, but extending to each a second weekend and for half of school holidays. The father sought an order that the mother have therapeutic assistance from a counsellor in circumstances where he asserts that the mother has made false allegations of sexual abuse and attempted to thwart his relationship with X.
The father, as the applicant, gave his evidence first and was cross-examined for approximately one day by counsel for the mother and the Independent Children's Lawyer. At the conclusion of his cross-examination and in circumstances where the mother's counsel had indicated that leave would be sought for a witness to give evidence rebutting the evidence of the father, Mr Frank left the vicinity of the Court and, upon enquiries, instructed his counsel that he wished to 'discontinue his application'. Some indulgence was given to the father's counsel to speak with him in case he had a change of heart. He did not. The matter then effectively continued as an undefended hearing in his absence and upon the mother's application.
This was a matter in which the father had been having only limited and supervised time with X following assertions made by the mother that X had made certain disclosures which the mother through her counsel indicated she would argue constituted a “grooming” process by the father towards inappropriate sexual activity and sexual intent by the father. To this end the father was cross-examined as to disclosures made by X that she and a friend of similar age had been laid down by the father whereupon he had inspected the genitals of both girls and may have touched those parts. In cross-examination the father asserted that:
(a)he had inspected the girls genitals but only as to cleanliness following visits to the beach;
(b)he had cleaned the girls genitals but without sexual intent; and
(c)he had informed the parents of X's friend that he had taken these actions.
The father was challenged as to whether or not he had the informed X's friend’s parents specifically as to his actions. His responses in cross-examination were somewhat equivocal and at one stage he admitted to counsel in cross-examination that he had been untruthful in his response and hence the application by the mother's counsel to call evidence from the mother of X's friend.
In her case outline and at the commencement of the trial the mother sought an order that X live with her and that she have sole parental responsibility for X. She proposed the X spend time with the father each alternative Sunday from 10.00am until 4.00pm and in the alternate week on Monday and Wednesday from after school until 7.00pm.
The mother alleged impropriety or “boundary crossing” by the father towards grooming and particularised as follows:
(a)The father mouth – kissing X;
(b)X rubbing the mother's and her sister’s genitals;
(c)The father showering with X;
(d)X advising the mother that the father checks her and D's vaginas to ensure cleanliness;
(e)The possibility that the father is masturbating whilst co–sleeping with X;
(f)The father co-sleeping with X generally;
(g)X being given alcohol;
(h)X being exposed to cigarette smoking in confined places;
(i)The father drawing on X's back including down to the “bottom crack”;
(j)The father calling X “sexy as” on multiple occasions;
(k)The father wiping X's bottom despite X saying she can manage;
(l)The father driving unlicensed with X;
(m)The father drinking alcohol to excess and smoking cannabis while caring for X;
(n)The father showing X a naked photo of the mother;
(o)The father calling the mother and her family members hateful and derogatory names to X; and
(p)The father saying negative things about X and making X agree with them.
The father agreed with a number of the above assertions in his cross-examination but denied others. He agreed that he occasionally co-sleeps with X and also on occasions together with her friend D. He admitted to referring to X as “sexy as”. He admitted wiping X's bottom. He admitted to checking the vaginas of X and D.
The father, however, denied any inappropriate action or intent in respect of X or D. He claimed to have the license of D's parents to “treat her the same as X”. He did not himself adduce evidence from D’s parents.
By the time of final submissions and after the father's discontinuance of his application, the mother sought different orders in respect of X's time with the father being specifically that such time be supervised at a Contact Centre or “any other supervisor agreed between the parties”. Given the father's actions in leaving court and discontinuing his application, counsel for the mother suggested that the father be given's given six months to enrol at a Contact Centre failing which his time with X would be reserved.
The orders sought by the mother are supported and endorsed by the ICL.
BACKGROUND
The father is 48 years of age. He is currently unemployed but where he says that he suffers an unresolved hernia issue which inhibits his employment. He reluctantly informed the Court that he had re-partnered. That partner was not on affidavit and despite the father seeking an order the X lives with him. There is no evidence that the father has children other than X.
The mother is 39 years of age. She has a child, Mr C, now aged 18 years from a previous relationship.
The parties had an “on– off” relationship involving periods of cohabitation and from 2014.
X was born in 2015.
Parenting orders were made in this Court including an order inter alia that X live with mother in 2015.
On 21 June 2015 a first Family Violence Order was made protecting the mother against the father.
In 2016/17 the father attempted suicide and in court volunteered that his attempt was a legitimate one.
In April 2017 the father withheld X from the mother for four nights where the father claimed that X had disclosed that she had played with a male relative’s “doodle”. The mother claims that the over holding of X was consistent with the father being advised of a Child Support Assessment against him.
Further parenting orders were made by this Court on 29 November 2017.
The parties finally separated in January 2019.
The mother obtained a further Family Violence Order against the father in June 2019 after she asserts that he said “I’m going to make sure you get a bullet”. The father denies the threat.
In May 2020 X made disclosures including those set out above. The mother successfully applied to have the father's time with X suspended and the time be supervised.
In November 2020 the father was convicted of a breach of Family Violence Order and a further Family Violence Order was made for two years in favour of the mother.
The father's time with X has not always occurred to its maximum in circumstances where it can be assisted by supervision by his mother and/or his sister but where they are not always available.
The Family Report
The Court is assisted by a family report prepared by family consultant, Ms E, dated 24 March 2021. Ms E interviewed the parties and X and had observations of X with her parents on 22 and 23 February 2021.
Specifically Ms E observed a warm and familiar relationship between X and her mother.
Similarly, Ms E witnessed X being enthusiastic in her relationship with her father. She was seen to be affectionate towards him and at ease in her relationship with him.
In her evaluation Ms E states:
[106][The mother] presented as holding a genuine belief that she has been a victim of emotional and physical abuse perpetrated by [the father]. It could be that hurtful comments of [the father] impacted upon her to a greater extent compared to her alleged hurtful comments to [the father]. The history of [the father’s] partner before [the mother] obtaining a PFVO for her protection and the recent actions of Ms F in having police assist in having [the father] removed from her home, suggest that [the father] may have a tendency to behave obnoxiously in certain types of relationships. [The father] may not be fully aware of how some of his behaviours are experienced negatively by other people, as indicated by the need for different individuals to call police to help explain they do not want him to remain in their home.
In respect of the allegations of “grooming” made by the mother, Ms E opines:
[111]However the alleged statement of X seems highly suggestive of possible sexual intent by [the father]. X presents as being a forthright and articulate girl for her age, noting she was about 9 months younger when she made the alleged statement about vaginal touching compared to when she was interviewed for this report. There was no first hand record of interview to help inform this assessment. The Child Safety Services notes suggest that X was not unduly influenced to report alleged sexual abuse, as indicated by the need to ask a direct question about the alleged statement to her mother, though this resulted in a considerable prompt for her subsequent disclosure which may shape the weight placed on such. Nonetheless, [the mother] has a very poor opinion of [the father] and she had pre-existing concerns that 2 year old X had been sexually abused by him. Her interpretation of [the father’s] behaviours, and X’s statements and behaviours may not be objective.
At Ms E further opines:
[116]It is rarely possible to completely rule out sexual abuse of a child or risk thereof. X does not seem to be emotionally harmed as a result of her father’s alleged indecent touching of her. She would not understand the repugnant implications of this alleged behaviour or risk that it may lead to increased sexualised behaviours. X’s verbal skills and understanding about ‘rude parts’ would be a protective factor. However if she were to identify that her disclosure of alleged sexual touching resulted in the cessation of her time with her father, then she may be careful about not disclosing other sexual behaviour of her father. This may arise if [the father] were to caution X about making future disclosures.
Ms E's recommendations are couched on whether the Court is able to make findings of unacceptable risk in respect of the allegations made against the father.
The father's evidence
The father gave evidence and was cross-examined extensively by counsel for the mother and the Independent Children's Lawyer. He was not a good witness. His responses were selective and made in terms which he thought placed him in the best light before the Court. He was less than honest and at times admitted his untruthfulness. He frequently responded with the phrase “can't recall” when confronted with difficult questions. He was aggressive in his demeanour in the witness box. He was reluctant to make admissions against interest.
In general, the father presented as a person bringing and prosecuting his application out of some form of revenge towards the mother. It is clear that he is antagonistic towards the mother. To his credit, however, he admitted in the witness box that his application for X to live with him was unrealistic and perhaps “an ambit claim” in circumstances where he has never had the responsibility for the care of X and where his recent relationship with X over some years has been limited by supervision and where he has not, in fact, taken up the maximum time available to him.
The fact of the father leaving the Court and discontinuing his application following his cross-examination and where confronted with the application by the mother for leave to bring evidence in rebuttal from D's parents gives the Court some real concern as to the veracity of the father's evidence, such as it was.
THE RELEVANT LAW
The orders that I am asked to make are parenting orders that being the case I am to have X's best interests as my paramount consideration. I determine those best interests by referencing the probative evidence before the Court and the parties’ proposals to the numerous considerations set out in s 60CC(2) and (3) of the Act against the background of the objects and principles of the legislation at s 60B which provides as follows:
(1)The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2)The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
SECTION 60CC FACTORS
Section 60CC(2)(a) the benefit to X of having a meaningful relationship with both of her parents;
The family report and the father's own evidence suggest that there is currently an established and strong relationship between the father and X despite the limitations of limited supervised time. Obviously, the orders sought by the mother further constrain that relationship but in circumstances where this factor, although a primary one, is not determinative.
Section 60CC(2)(b) the need to protect X from physical or psychological harm from being subjected to, or exposed to, abuse, neglect of family violence
Recent amendments to the Act provide that 'greater weight' is to be given to this consideration.
X has made a number of disclosures which the mother interprets as “grooming behaviour towards sexual intent” or on occasion may be interpreted as actions by the father for reasons of his own sexual gratification. X is just the six years of age. She is not able to self-protect. It is therefore incumbent upon the Court to make orders which protect her from violence or abuse and including sexual abuse.
Section 60CC(3)(a) any views expressed by X and any factors (such as X's maturity and level of understanding) that the court thinks relevant to the weight which would be given to X's views
X is still young at six years of age and not of an age where she could be expected to rationalise her own views and preferences as to her best interests including matters of safety. It is clear that she has a positive relationship with her father and views him affectionately. This in itself may be a protective consideration.
The mother’s proposed orders are limited to supervised time for the foreseeable future and perhaps until X's is of an age where she can self-protect. It is the often commented by my colleagues that supervision is a tool to assist children in maintaining relationships with a parent where otherwise those relationships would cease out of children's best interests and safety.
Section 60CC(3)(b) the nature of the relationship of X with:
(i) each of X's parents; and
(ii) any other persons (including any grandparent or other relative of X)
The evidence of the family report is positive in respect of X's relationship with the mother. She has been the primary care of X throughout her life and it is reasonable to expect that X looks to her mother for support and dependency.
X’s relationship with her father has been almost entirely one of him being a “visiting parent” and most recently where that time has been limited and supervised.
Section 60CC(3)(c) the extent to which it each of X's parents has taken, or failed to take, the opportunity;
(i) to participate in making decisions about major long – term issues risk in relation to X; and
(ii) to spend time with X; and
(iii) to communicate with X; and
Section 60CC(3)(ca) the extent to which each of X’s parents has fulfilled, or failed to fulfil the parent’s obligations to maintain X
The mother provides actual and financial support for X in circumstances where the father has limited income and hence only the statutory minimum obligation for financial support of X.
Section 60CC(3)(d) the likely effect of any changes X’s circumstances, including the likely effect on X of any separation from:
(i) either of her parents; or
(ii) any other child, or person (including any grandparent or other relative of X), with whom X has been living;
X most recently knows her father only by way of the supervised time. This often occurs in the presence of the paternal grandmother or paternal aunt. X's relationship with her father appears to have endured these difficulties.
Section 60CC(3)(e) the practical difficulty and expense of X spending time with and communicating with a parent and whether that difficulty or expense will substantially affect X’s right to maintain personal relations and direct contact with both parents on a regular basis
This is not a relevant consideration in these proceedings.
Section 60CC(3)(f) the capacity of each of:
(i) X's parents; and
(ii) any other person (including any grandparent or other relative of X);
to provide for the needs of X, and including emotional and intellectual needs
The mother's capacity to care for X is no longer challenged by reason of the father's discontinuance of his application. The evidence before the Court and including that of the family consultant is entirely positive of the mother’s capacity.
The father's capacity to care for X and his insight into the role of parent is questionable. The fact that he should bring an application for X to live with him in historical circumstances where his time with the six-year-old child has been limited, and where he now admits that this was an ambit claim, says little as to his insight into the objective needs of a young child.
The unresolved questions as to the father's intent in respect of his inspection of X genitalia and that of her friend D, together with other aspects of X's disclosures cause concern for the Court as to the father's capacity to maintain proper protective boundaries in respect of his daughter and his own behaviour towards her.
Section 60CC(3)(g) the maturity, sex, lifestyle and background (including lifestyle culture and traditions) of X and of either of X’s parents, and any other characteristics of the child that the court thinks are relevant
X is just six years of age and requires protection by adults. She is not of an age where she can realistically understand risk and self-protect.
Section 60CC(3)(h) if X is an Aboriginal child or Torres Strait Islander child;
(i) X’s right to enjoy her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
This is not a relevant consideration in these proceedings.
Section 60CC(3)(i) the attitude to X, and to the responsibilities of parenthood, demonstrated by each of X’s parents
This is not a relevant consideration in these proceedings.
Section 60CC(3)(j) and (k) any family violence involving X or a member of the X's family and any family violence orders
The mother has a history of obtaining Family Violence Orders against the father for her self-protection. The father has been convicted of a breach of those orders.
The evidence before this Court suggested that the father presents as entitled and empowered in respect of male-female relationships.
Section 60CC(3)(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation X
The orders that the mother seeks are limited to formally supervised time. There are obviously constraints in respect of the availability of Contact Centres and the duration in which they can assist where it is usually considered to be a short–term facility. X is just six years of age and superficially enjoys a close and loving relationship with her father. It is likely, therefore, and particularly if the father intends to pursue a relationship with X, that considerations as to other protective orders will need to be considered by the parents and possibly the Court.
FINDINGS AND CONSIDERATION
The evidence suggests that X has an established, successful and loving relationship with each of her parents.
The mother has been X's primary carer since birth whereas the father's relationship with her has been more tenuous and more recently limited to supervised short periods of time.
I find that the father was entitled and self–interested in in his application which sought orders for X to live with him in circumstances where that situation does not objectively sit comfortably with X's best interests.
Given the father's decision to leave these proceedings after his cross-examination and when confronted with possible rebuttal evidence, I have considerable concern as to his denials of the allegations made by the mother in respect of X's disclosures and, more particularly, the father's intent and whether his behaviour was a form of grooming and/or personal sexual gratification. It follows that there are risk factors unresolved and unmitigated in respect of the father's behaviour and X's safety. I am of the view, therefore, that orders for supervision are appropriate given X's young age and these unresolved issues. Whilst supervised time will inevitably be limited in its extent and nature, it will serve to maintain a relationship for X with the father being one that she enjoys and, as such, the onus is on the father to take up this option and importantly to do so consistently.
There will be orders sought in the terms of the mother’s amended application articulated in her counsel’s final submissions and notably supported by the Independent Children's Lawyer.
The orders will include one for the mother to have sole parental responsibility for X. I have found an unacceptable risk for X in the unsupervised care of the father and hence the presumption of s 61DA is not applicable. The father breached Family Violence Orders and his decision to unilaterally exit the trial of this matter persuades me that he does not have the insight or necessary co-operative faculties to discharge the parental responsibility obligations.
I certify that the preceding sixty-two (62) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice McGuire. Associate:
Dated: 26 November 2021
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