Franka and Grantham
[2011] FamCA 32
•1 February 2011
FAMILY COURT OF AUSTRALIA
| FRANKA & GRANTHAM | [2011] FamCA 32 |
| FAMILY LAW – CHILDREN – Undefended proceedings – Allegations of serious family violence – Risk assessment – Where father poses unacceptable risk of violence and alcohol related abuse – Where mother proposes supervised time at contact centre – Mother to have sole parental responsibility – Orders child not spend time or communicate with father |
| Family Law Act 1975 (Cth) Evidence Act 1995 (Cth) |
| Briginshaw v Briginshaw (1938) 60 CLR 336 Goode and Goode (2006) FLC 93-286 Johnson and Page (2007) FLC 93-344 M v M (1988) 166 CLR 69 Marriage of A (1998) FLC 92-800 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449 W and W (Abuse allegations: unacceptable risk) (2005) FLC 93-235 |
| APPLICANT: | Mr Franka |
| RESPONDENT: | Ms Grantham |
| FILE NUMBER: | PAC | 6511 | of | 2007 |
| DATE DELIVERED: | 1 February 2011 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Ryan J |
| HEARING DATE: | 27 January 2011 |
REPRESENTATION
| THE APPLICANT: | No appearance |
| COUNSEL FOR THE RESPONDENT: | Mr Gersbach |
| SOLICITOR FOR THE RESPONDENT: | Rafton Family Lawyers |
Orders
All prior parenting orders are discharged.
Ms Grantham (“the mother”) shall have sole parental responsibility for the child J, born … December 2006 (“the child”).
The child shall live with the mother.
Mr Franka (“the father”) shall not spend time with or communicate with the child.
All outstanding applications are dismissed.
Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Franka & Grantham is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT PARRAMATTA |
FILE NUMBER: PAC 6511 of 2007
| MR FRANKA |
Applicant
And
| MS GRANTHAM |
Respondent
REASONS FOR JUDGMENT
Before the Court for hearing are applications for parenting orders regarding a four year old child called J (“the child”). His parents are Mr Franka (“the father”) and Ms Grantham (“the mother”).
The father filed an Initiating Application on 28 November 2007 in the Family Court of Australia in Parramatta. According to this application the father seeks orders whereby the child lives with the mother, the parties have equal shared parental responsibility, the child spend time with him each alternate weekend from 5.00 pm Friday to 11.00 am on Sunday and other associated orders relating to Father’s Day, Christmas, changeover, contact details and medical emergencies. Attached to the father’s application is a Final Apprehended Violence Order where the protected person is the mother and the defendant is the father. The order is dated 2 May 2007 and was in force for a period of two years. The orders include for the father not to assault, molest, harass, threaten or otherwise interfere with the mother; engage in conduct that intimidates the mother; or stalk the mother, or any person who has a domestic relationship with her.
The mother filed a Response to Initiating Application on 24 April 2008. She seeks orders for her to have sole parental responsibility for the child and for him to live with her, and the father to spend supervised time with the child for two hours each fortnight at a contact centre.
As it transpired, the father did not pursue his application. He attended court on 27 January 2011 where, prior to the start of the hearing, he conferred with his solicitor. For reasons not known to the Court, the father left and did not return. The father’s solicitor informed the Court that the father would not participate in the hearing. The solicitor was given leave to withdraw and the father’s application was dismissed.
Thus the mother’s Response was determined on an undefended basis. During the course of the morning, information came to light about violence and the father’s alcohol use and related events which occurred in 2010. As these suggested the risk issues raised by the mother had escalated, she was given leave to amend her application, so that, in effect, the supervised visits she proposed would occur bi-monthly rather than fortnightly.
Background
The father was born in 1979 and is currently 31 years of age. The mother was born in 1984 and is currently 26 years of age.
In August 2003 the father’s child B was born.
The parties commenced a relationship around June or July 2005 when the mother moved into the father’s parents’ house in R. The mother was 19 years old and the father was 26 years old.
On New Year’s Eve 2005 the mother claims the father aimed and fired a spear-gun at her whilst they were both in the car. The father then smashed the windscreen and further threatened the mother.
In February 2006 the parties moved into a home that the father purchased, located at R.
In early 2006 the mother claims that father picked up B, threw him into a car seat and then onto the ground, causing a nosebleed. Furthermore, the mother claims that the father smashed the passenger side window of mother’s car whilst they were both in the car.
In late 2006 the mother claims that the father crashed the mother’s car while drunk. The mother also claims the father forced the mother to have sexual intercourse with him when she was eight months pregnant and threatened to kill her if the mother made a complaint to police.
In December 2006 the child was born.
In January 2006 the mother claimed that the father threw a can at a window of the car causing the window to hit the mother. The mother blacked out and fell over. The mother claimed to have been grabbed by the throat. The mother also claimed that the father “rammed” a bottle into the mouth of the child (then aged 4-5 weeks).
On 19 March 2007 the parties separated. The child resided with the mother after separation. The mother obtained temporary accommodation arranged for her by Centrelink, then moved to a residence in D and then moved to an address, which she withheld from the father. From this date, the mother received many abusive and threatening calls from the father.
On 20 March 2007 the mother made a statement at the local Police station. The mother obtained seven days temporary accommodation with the child at a women’s refuge.
On 2 May 2007 an Apprehended Violence Order was made against the father at the New South Wales Local Court.
In June 2007 the mother made an application for Legal Aid. The mother obtained a grant for mediation which did not take place.
In July 2007 the mother and the child moved into a granny flat.
In early 2008 the mother and the child moved again to an undisclosed address.
On 28 April 2008 the parties had interim consent orders made by the Court which are as follows:
1.That the child [J] born […] December 2006 shall live with the mother.
2.That the mother shall have sole parental responsibility for the child.
3.That the father spend time with the child for 2 hours each fortnight on a supervised basis at […] (hereafter “The Contact Centre”).
4.That each party forthwith:
a)Contact with the Contact Centre within 7 days and arrange an appointment for assessment for suitability for supervised contact;
b)Attend the assessment;
c)Comply with the requirements of the Contact Centre;
d)Comply with all reasonable rules of the Contact Centre; and
e)Comply with all reasonable requests or directions of the staff of the Contact Centre.
5.If after the assessment intake procedure the Contact Centre is unable or unwilling to provide supervision of the father’s time as set out in Order 3 then each party has leave to restore the matter to the list on 7 days written notice to the other party and to the Court.
6.If after the assessment that parties are accepted by the Contact Centre as suitable for supervised time, that the father spend time with [the child] each fortnight at times nominated by the Contact Centre for a period of two hours with such time to occur at [the Contact Centre].
7.That the father shall be solely responsible for any costs or fees associated with the Contact Centre providing supervision of his time with the child.
8.In the event that the Contact Centre can only offer supervised time only at times which are less regular than specified in Order 3 then the Father shall spend time with the child at the times which are offered by the Contact Centre.
In May 2008 the father began spending supervised time with the child.
On 18 August 2008 I made the following orders by consent:
1.That the child [J] born […] December 2006 live with the mother.
2.That the mother have sole parental responsibility of the child.
3.That the child shall spend time with the father as follows:
a)for two hours of supervised time at the [the] Children’s Contact Centre each alternate Sunday in accordance with Orders made on 28 April 2008;
b)upon the father providing a clear supervised urinalysis test to the mother’s solicitor then the father’s time shall proceed to four hours each alternate Sunday from 12.00 noon until 4.00 pm on an unsupervised basis.
4.That the father’s unsupervised time with the child remains conditional upon him providing clear monthly supervised urinalysis test results to the mother’s solicitor.
5.That changeover shall occur at [the] Children’s Contact Centre and both parties shall contact the Centre to make these arrangements.
6.That the father shall attend upon and complete a perpetrator’s of domestic violence course and provide evidence of completion to the mother’s solicitor.
7.That the father is restrained from consuming alcohol or illicit substances 12 hours prior to and during his time with the child.
8.That the father is restrained from allowing the child to be in the presence of any third persons consuming or having consumed illicit substances or alcohol in excess.
9.That the father is restrained from allowing the child to witness or be in the presence of any physical violence, psychological violence and emotional violence.
10.That the father is restrained from allowing the child to be left in the presence of the paternal grandparents, [Mr and Mrs Franka Senior], and the paternal uncle, [S Franka] without the father being present.
11.That neither party is to denigrate the other or any member of the other party’s family in the presence of or hearing of the child and are to use their best endeavours to ensure no other person does so.
12.That for the purpose of communication regarding the child the parties shall use a communication book to following the child and in circumstances of urgency by way of mobile telephone.
13.That the parties will keep each other notified of their current mobile telephone number.
14.That each parent shall notify the other parent as soon as practicable of any illness, medical emergency or hospitalisation relating to the child, including details of any medical practitioner or hospital attended by the child.
15.That in the event the father provides supervised urinalysis test results positive for any illicit substance then the father’s time with the child on an unsupervised basis is suspended and the father shall spend time with the child on a supervised basis in accordance with the orders made on 28 April 2008.
16.That further consideration of this matter is adjourned to 9.30am on 10 December 2009 NOTING the parties’ legal representatives have leave to appear by telephone on this occasion.
17.I grant liberty to both parties to apply to relist the matter on 48 hours notice.
On 10 December 2009 I made the following further orders:
1.The father shall spend time with the child [J] each alternate Sunday from 12.00 noon until 5.00 pm.
2.That Order 5 dated 18 August 2009 is discharged.
3.The child’s changeover shall occur at the [H Church]. For the purpose of changeover the mother may be accompanied and/or changeover may be effected by her nominee.
4.This matter is adjourned to 9.30 am on 3 March 2010.
In January 2010 the mother began a relationship with Mr V.
On 10 March 2010 I made an order for a family report.
In April 2010 the last urinalysis test result was provided to the mother and she was informed that the father has ceased undergoing urinalysis. Because the father’s time with the child was conditional upon him continuing to provide clear urinalysis screens, his failure to continue urinalysis meant he was not entitled to spend time with the child. Nonetheless the child continued to spend time with the father.
From 8 August 2010 the father has not spent any time with the child. Notwithstanding the father’s failure to attend the changeover place until December 2010, the mother continued to take the child on the off chance the father might turn up.
On 11 August 2010 the parties attended family report interviews with Mr O, Family consultant with the Family Court.
On 21 August 2010 the father’s partner, Ms L, sought Police assistance about what she claimed was a serious assault by him on her. Although Police acted immediately they were unable to locate the father.
On 22 August 2010 the mother was informed by the father’s mother he was injured in hospital and unable to spend time with the child. Police had been to the father’s mother’s home on a number of occasions and she knew they wanted to speak with him about his partner’s complaint. The father was not in hospital and the information his mother gave the mother was misleading. I infer she failed to provide accurate information for fear this may lend support for the mother’s evidence in these proceedings about the father’s violence to her and his alcohol abuse.
On 26 August 2010 the father was refused bail in relation to domestic violence offences in which Ms L was alleged to be the victim.
On 5 September 2010 the mother was contacted by the father’s sister. She told the mother she assumed the mother was aware the father was in prison. The father’s sister sought to arrange to have the child visit her so he could spend time with his brother. The mother declined and said she would make these arrangements directly with B’s mother.
On 8 September 2010 the family consultant completed the family report which was released on 13 September 2010. The family consultant recommends the following:
· Child’s time with the father be progressively increased to alternate weekends provided the child is not at risk in the care of the father;
· Father provide the requested drug test;
· Child have telephone contact with the father;
· Child spend some school holiday time with the father after the child starts school.
On 29 September 2010 I listed the matter for hearing. On the same day the father was granted bail.
On 10 November 2010 I made the following orders:
1.I give leave to Mr [F] to file an affidavit sworn by him on 10 November 2010 in Court.
2.I give the respondent mother leave to make an oral application to suspend all orders which provide for the child [J] born […] December 2006 to spend time with the father.
3.Pending further order all orders for the child to spend time with the father are suspended.
4.Both parties have leave to file any Amended Application or Response within 28 days.
5.In the event the paternal grandparents seek to intervene in the proceedings they shall file and serve such Application to this effect within 21 days.
6.All parties shall file and serve any affidavits upon which they rely by 7 January 2011.
7.The parties and the Independent Children’s Lawyer have leave to issue subpoena for the production of documents relevant to this matter.
8.By 4.00 pm 24 January 2011 the parties shall file and serve a Case Outline document which comprises the following:
(a)Summary of Argument;
(b)Chronology;
(c)List of Authorities; and
(d)List of documents relied upon.
9.The Court Notes the parties may rely upon one affidavit per deponent.
10.In the event the father fails to comply with the above directions and/or throughout the hearing his application may be struck out and the mother’s application heard on an undefended basis.
11.The solicitor for the father is to provide a copy of these orders to the paternal grandparents by ordinary pre-paid post within 7 days.
12.The solicitor for the father shall provide written notice to the Court of compliance with the above direction.
In January 2011 the mother and Mr V married. The mother and child now live in Mr V’s house.
In February 2011 the child will commence pre-school.
Relevant Principles
Orders concerning parental responsibility, with whom a child will live and arrangements for spending time with his or her parents, as well as other people interested in the child’s welfare, are parenting orders (s 64B). They arise in proceedings conducted under Pt VII of the Family Law Act 1975 (Cth). Unless a court makes an order which changes the statutory presumption of joint parental responsibility, s 61C(1) provides that until a child turns 18, each of the child’s parents has parental responsibility for the child. The meaning of ‘parental responsibility’ is defined in s 61B as: “… all of the duties, powers, responsibilities and authority which by law, parents have in relation to children.” Essentially the presumption relates to parental decision-making and does not determine where or with whom a child will live. By virtue of s 61DA(2) the presumption does not apply where there exist reasonable grounds to conclude that a parent, or a person who lives with a parent of the child, has engaged in family violence or child abuse. The presumption is rebutted where a court is satisfied it would conflict with the child’s best interests (s 61DA(4)). Thus if the Court determines the presumption does not apply or is rebutted, it must decide the appropriate parental responsibility arrangements. The process for doing so is found in s 60B and s 60CC.
Section 60B sets out the objects of Pt VII and the principles which underline those objects. In deciding whether to make a particular parenting order, including an order concerning parental responsibility, s 60CA and s 65AA ensures that the child’s best interests are the paramount consideration. Section 60B is important as it provides the context within which the relevant s 60CC factors are to be examined and ultimately weighed. The importance of s 60B factors varies from case to case but as a general approach, examined from the child’s perspective, points the way to an optimum outcome. Where there are no countervailing factors, the s 60B principles may be decisive. Section 60B is set out below:
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).
3.For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a)to maintain a connection with that culture; and
(b)to have the support, opportunity and encouragement necessary:
(i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii) to develop a positive appreciation of that culture.
In deciding the arrangements that will promote the best interests of a particular child, the Court must consider the various matters set out in s 60CC. Section 60CC(2) contains two primary considerations. The first is the benefit to the child of having a meaningful relationship with both of the child’s parents (s 60CC(2)(a)). The second is 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(2)(b)). Because these two factors are referred to as “primary considerations” this means they must be considered in every parenting case and are to be considered as having particular importance.
Having considered the primary considerations, the Court must take into account the thirteen additional considerations set out in s 60CC(3). Its subsections comprise a list of matters that must be considered to the extent that each is relevant to the particular case. Paragraph (m) permits the Court to take into account “any other fact or circumstance that the court thinks is relevant”. This ensures that the infinite variety of individual children’s circumstances can be addressed. The Court must also consider the extent to which each parent has fulfilled his or her parental responsibilities, and has facilitated the other parent in fulfilling his or her parental responsibilities: s 60CC(4). In deciding the appropriate parenting order, the Court must, to the extent possible and consistent with the child’s best interests, ensure its orders are consistent with any family violence order and that do not expose a person to an unacceptable risk of family violence: s 60CG. Ultimately, the weight attached to each factor is a matter for the Court’s discretion.
The sequence of determining parenting orders is important. If the Court is satisfied that a child’s parents are to have equal shared parenting responsibility, it must consider the practicability (s 65DAA(5)) of the child spending equal or substantial and significant time with its parents (s 65DAA). In the context of s 65DAA ‘consider’ means a consideration tending to a result, or to consider positively the making of an order (Goode and Goode (2006) FLC 93-286). The notion of equal time requires no explanation and is decided first. If equal time is not ordered, substantial and significant time must be considered. This concept is defined in s 65DAA(3) and occurs where:
(a)The time the child spends with the parent includes both:
(i)days that fall on weekends and holidays; and
(ii)days that do not fall on weekends or holidays; and
(b)the time the child spends with the parent allows the parent to be involved in:
(i)the child’s daily routine; and
(ii)occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
The child’s best interests remain the overriding consideration.
Where neither concept delivers an outcome which promotes the child’s best interests, the Court then determines the parenting applications as outlined above. Similarly, where the Court has decided against maintaining equal shared parental responsibility, s 65DAA considerations do not apply.
General principles to be applied in determining risk of abuse allegations
The legal principles to be applied in a case involving allegations of abuse are laid down by the High Court in M v M (1988) 166 CLR 69. The oft quoted passages are found at pp 76-78 where the High Court held:
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 C.L.R. 336 at p. 362. There Dixon J. said:
The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences.
His Honour's remarks have a direct application to an allegation that a parent has sexually abused a child, an allegation which is often easy to make, but difficult to refute. It does not follow that if an allegation of sexual abuse has not been made out, according to the civil onus as stated in Briginshaw, that conclusion determines the wider issue which confronts the court when it is called upon to decide what is in the best interests of the child.
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 on the order to be made respecting custody and access. There will be cases also in which the Court has no hesitation in rejecting the allegation as groundless. Again, in the nature of things there 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. But that is not the issue in this case.
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) V.R. 298 at p. 300), ‘an element of risk’ or ‘an appreciable risk’ (Marriage of M (1987) 11 Fam L.R. 765 at pp. 770 and 771 respectively), ‘a real possibility’ (B and B (Access) [1986] F.L.C 91-758 at p. 75,545), a ‘real risk’ (Leveque v. Leveque (1983) 54 B.C.L.R. 164 at p. 167), and an ‘unacceptable risk’ (In re G. (a minor) (1987) 1 W.L.R. 1461 at p. 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.
By way of further elaboration of the civil standard of proof, the High Court in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449 per Mason CJ, Brennan, Deane and Gaudron JJ said at 449-450:
The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary “where so serious a matter as fraud is to be found”. Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct.
Although the authorities discussed above were decided prior to the Evidence Act 1995 (Cth) they have been applied in decisions made subsequently. That they apply to cases such as this one was clearly stated in Johnson and Page (2007) FLC 93-344.
The onus of proof is the civil standard of proof in accordance with s 140 of the Evidence Act. The Full Court in Johnson and Page agreed with W and W (Abuse allegations: unacceptable risk) (2005) FLC 93-235 and said a Court will only make a positive finding that sexual or other abuse (including violence) has happened when, by reference to s 140(2)(c) of the Evidence Act the judge “is satisfied to the highest standard, on the balance of probabilities abuse has occurred”.
If the Court determines that it cannot or should not make a positive finding that there has been abuse, the Court must determine whether in all the circumstances there is an unacceptable risk of it. Where none, rather than some only, of the accumulation of factors considered satisfy the standard of proof it is generally accepted a judge should be cautious in reaching a conclusion that an unacceptable risk of abuse has been established. Whether or not there exists an unacceptable risk involves an evaluation of the nature and degree of the risk and whether, with or without safeguards, it is acceptable. The components, which go to make up that conclusion, need not each be established on the balance of probabilities. The Court may determine that the constellation of factors comprises an unacceptable risk even though none or only some are proved to that standard: Johnson and Page.
The findings made in the assessment of risk addresses part of the Court’s responsibilities. Whilst the resolution of the risk issue may be the central issue in proceedings, the Court’s role is broader in that it must determine the best interest of the child having regard to the relevant statutory factors. In M v M at par 76 the High Court said:
The resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the court’s determination of what is in the best interests of the child. The Family Court’s consideration of the paramount issue which it is enjoined to decide, cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse. The Family Court’s wide-ranging discretion to decide what is in the child’s best interest cannot be qualified by requiring the court to try the case as if it were no more than a contest between the parents to be decided solely by reference to the acceptance or rejection of the allegation of sexual abuse and the balance of probabilities.
If the Court reaches the conclusion that there is no unacceptable risk, the Court must consider the separate issue of the parent’s belief in the occurrence of the events. In Marriage of A (1998) FLC 92-800 at 84,996 the process is described thus:
The first enquiry is whether there is objectively an unacceptable risk. If there is the Court must take steps proportionate to the degree of risk. If there is not, the Court may then need to consider whether the residence parent has a genuinely held belief that such a risk exists and whether it will have a significant impact on the party’s capacity as the resident parent and so impinge on the interests of the children. The Court then needs to take steps proportionate to that circumstance.
Applying the Law to the Facts
The mother is a 26 year old citizen of New Zealand who has resided in Australia since 2001. The subject child is her only child. Shortly prior to this hearing the mother married Mr V. He is 26 years old and does not have any children. The mother and child now reside with Mr V in a home owned by him. Theirs is a healthy relationship which is respectful and without violence.
The mother is a teacher. She works four days each week during school term. Mr V is employed full time as an instructor.
The mother’s family reside in New Zealand. Her sister and a paternal aunt reside in Australia. She and her sister and her sister’s children are in regular contact with each other.
The mother and Mr V attend church regularly.
It has always been the father’s position the child reside with the mother. I infer he is satisfied that she would provide for the child’s needs and it is his view she has competently cared for their son and will continue to do so. Nonetheless, and as requested, the family consultant considered the mother’s parenting capacity. At par 32 of the family report the family consultant said “[the mother] impressed with her significant parenting skills and her ability to engage emotionally, verbally and cognitively with [the child] and demonstrated her knowledge and understanding of his personality and developmental stage.” From his observations of the child with the mother, he said the child has “a strong attachment with his mother” and the child “presented as a secure and confident child who was advanced verbally for his age.”
As the child has been in the mother’s exclusive care from when he was three and a half months old, his presentation supports the opinion expressed by the family consultant about her parenting capacity. Indeed, it is noteworthy, there was nothing presented to the Court, which would cause any concerns about the mother’s parenting capacity. I am satisfied she is a capable, reliable and effective parent to the child.
Because the father did not comply with directions to file affidavits, it is necessary to consider other sources to determine his circumstances.
The father is a welder. Since separation he has lived independently and with his parents. From when the proceedings started until mid-2010 the father had full time employment. Whilst this may still be the case, the evidence is not sufficiently current for me to determine his present circumstances.
The father told the family consultant he had a new partner, Ms L. Police records indicate this relationship has been in place for about 1.5 years. Ms L has two young daughters and according to the father it was his hope the child would become part of his family with Ms L, her two children and his elder son B. B regularly spends time with the father and, through the father, the two half-brothers have developed a nice relationship.
To the family consultant, the father claimed he would not place the child at risk and said he “would not have him in an environment that was not healthy for him.” He denied a past history of drug abuse but agreed when he and the mother cohabited his “drinking alcohol was quite a problem.” This was expressed to be no longer a problem with the father’s drinking now contained to “a few drinks with friends on a Friday night.” The father stressed when the child is with him he would stay with him on weekends during which the father would not consume alcohol. Although the father had ceased providing monthly drug screens in April 2010, he told the family consultant he would willingly resume these.
As has been earlier recorded, the father met with the family consultant on 11 August 2010. Within two weeks, Ms L complained to police the father breached an Apprehended Violence Order previously made for her protection and on 26 August 2010 he was refused bail after she complained he assaulted her. The point being, there was more to the father’s relationship with Ms L than revealed by him. In addition, more recent evidence of alcohol abuse and violence by the father than the mother, family consultant or Court knew about. I do not know why the father withheld this information from the Court and his failure to give full and frank disclosure is troubling.
In any event, it is appropriate to record the father’s court history convictions. These are set out below:
· In February 2000 the father was convicted of driving with mid-range PCA. He was placed on a s 558 recognisance for 12 months, disqualified from driving for six months;
· In March 2000 he was convicted of using an unregistered vehicle on a road, using an uninsured motor vehicle and driving on road while licence suspended. In relation to these he was fined and on the latter disqualified for 12 months. A second charge of driving on road whilst licence suspended was dismissed pursuant to s 556A;
· In 2004 he was convicted of two counts of assault occasioning actual bodily harm in relation to which he was fined and placed on a s 9 bond for 12 months;
· In 2007 he was convicted of destroying or damaging property, in relation to which he was fined and ordered to pay approximately $700 compensation;
· In November 2007 he was convicted of two counts of stalking – intimidate in relation to which he was fined and placed on a 12 month s 9 bond;
· In November 2007 he was convicted of two counts of common assault in relation to which he was fined, placed on a 15 month s 9 bond subject to supervision by probation and parole;
· In 2009 he was convicted of mid-range PCA in relation to which the father was placed on a 12 month s 9 bond subject to conditions, including supervision by a probation and parole, fined and disqualified from driving for nine months commencing from 21 February 2009;
· In June 2010 he was convicted of drive with mid-range PCA in relation to which he was sentenced to a term of imprisonment for seven months which was suspended upon him entering into a s 12 bond for seven months. He was disqualified from driving for two years. The father lodged a severity appeal which was dismissed in July 2010;
· In August 2010 he was convicted of two counts of common assault in relation to which he received a 12 month suspended sentence upon entering an s 12 bond for the same period to be supervised by probation and parole.
In the lead up to the final stage hearing the Court encouraged the father to undertake a therapeutic program designed for perpetrators of family violence. The father failed to participate in the program. In relation to his PCA and a number of other convictions, it was recommended the father complete drug and alcohol rehabilitation, which he has not done. Sadly, it would appear unlikely the type of therapeutic intervention which might moderate the risks to the child of exposure to alcohol abuse and family violence are steps the father is unlikely to take.
The family consultant observed the child with the mother and her husband. These observations are recorded at par 8 and par 9 which are set out below:
8.[The child] excitedly ran into the playroom and explored the sand tray and the puppets. [The mother] asked him to sit with her at the table and play a puzzle. [The child] engaged very well in play with his mother and their rapport was excellent. [The mother] demonstrated her skills in directing, encouraging and affirming [the child]’s verbal and physical contributions to the activities. [The child] was very excited about building with the large foam blocks and laughed and enjoyed the play with a ball and lay on the floor with his mother. [The child] was very demonstrative and spontaneous in play and appeared very confident with his mother. The communication and interaction between [the child] and his mother displayed a strong and secure attachment as well as a familiarity in playful and fun activities together.
9.Later [the mother]’s partner, [Mr V] entered the room and [the child] engaged easily in play with him and the communication appeared relaxed and familiar.
In relation to his mother, the child told the family consultant he liked “walking and dancing and watching TV with mum and I have heaps of toys. I like mum the most of all.” The mother described her relationship with the child as loving and fun. She outlined her views about her parental responsibility for the child, which demonstrate her sound understanding of the child’s needs and a commitment to ensure these are met to the highest level within her gift. I am strongly satisfied the child has a happy and loving relationship with his mother, which is full of meaning and to his benefit.
The family consultant observed the child with the father. These observations are set out at par 10 and par 11, which observations are set out below:
10.[The child] was later told his father was in the waiting room and could come into the playroom and [the child] ran out to meet his father and then ran back excitedly to the playroom with [the father]. [The child] went straight to the sand tray to play. [The father] asked if he wanted to play ball and [the child] told him he did not want to play but his father told him he would like to play. [The father] commented that [B] was at school today and had been playing with ‘Nan and Poppy’ and had gone on an excursion.
11.Both [the child] and his father then sat on the floor together and engaged very well in building with the foam blocks and [the child] was very focussed on the activity that was well developed by his father. [The child] was very excited and pleased with the play and asked his father to help him build and [the father] joined in creative play with him. [The child] moved on to play with the dolls house and his father sat on the floor with him and they both focussed on imaginative play with the doll’s furniture. [The child] sat close to his father and the communication was relaxed and task focussed. [The child] displayed familiar rapport with his father and [the father] displayed an ability to direct and encourage playful interaction. They later drew on the whiteboard and the verbal and physical engagement indicated a confident and relaxed ability to enjoy play together.
The child told the family consultant he liked being with his father because “I like playing with [B] and his toys and my friends.” He added “[B] is my best friend and I love mum and dad.”
Prior to separation the child had virtually no relationship with the father. There is no dispute the mother was primarily responsible for the child’s care from birth. Because of the father’s behaviour, she did her best to protect the child from him and, thus, there was little one on one contact between the child and father. The child did not have further contact with the father until May 2008, when fortnightly supervised visits at the Contact Centre commenced. The father regularly spent time with the child in accordance with these orders. Supervision ended in December 2009, from when the father continued fortnightly visits with the child, with the time increased to five hours each alternate Sunday. This ended in early August 2010 when the father stopped spending time with the child. Although for a period following the father was in gaol, he did not seek to resume contact with the child upon his release.
From the child’s perspective, the father has been an erratic presence in his life, with inexplicable periods in which he effectively disappeared. Such time as the child has spent with him was, initially, in a safe setting. Although from December 2009 the time was unsupervised, this was quite limited and thus the extent of the risk to which the child was exposed was moderated. Thus, in carefully constructed circumstances the child has been able to develop a friendly relationship with his father, which has not been contaminated by substance abuse or family violence.
In her affidavit, the mother gave detailed evidence of serious family violence and abuse directed to her during their relationship by the father, some of which has already been discussed. This evidence was not challenged and is accepted. Also his harassment of her after they separated. She deposes to the father’s aggression towards his elder child B, which on occasion resulted in physical abuse. On one occasion after the father hit B, the child developed a large bruise on the back of his head. On another occasion, the father threw B on the ground, which resulted in the child suffering a bleeding nose. It is unnecessary to recite the complete detail of the mother’s evidence in relation to the father’s treatment of B, but sufficient to observe the father demonstrated a pattern of verbally abusive, intolerant and on occasion troubling physical mistreatment of the child. The father has had little opportunity to behave towards the subject child in the same manner. However, the evidence given by the mother about his treatment of his elder son establishes a clear risk the father may behave towards this child in the same manner.
So as to give a flavour about the type of violence the mother said she experienced from the father the following incidents are noted:
31.In or about the end of 2005, when I was 8 months pregnant with [the child], [the father] demanded sex form me. I did not want to do this at the time due to being heavily pregnant. [The father] said to me words to the effect of “Why do you not want to have sex with me? Don’t you love me, you don’t want to have sex with me because you’re fucking someone else”. He then pushed me against the wall and bent me over and forced me to have sex. [The father] said to me words to the effect of “If you go to the Police I’ll kill you and if I can’t find you, I’ll find your sister and kill her all I have to do is wrap myself in cling wrap so I won’t get your blood on me and I’ll dump your body in the bush. If you dad rings I’ll tell him you’ve left and I haven’t seen you for ages.” [The father] then said to me words to the effect of “The bush is a big place, [the mother]. People go missing in the bush all the time”. As a result of his threats towards me I was terrified of him. I was even too scared to park my car outside or anywhere near the Police station in case he thought I was talking to the Police about him.
…
36.[The father] has also punched me in the head and hit me over the head with beer bottles. Most of the time when [the father] got violent he would try to strangle me by grabbing me around the throat.
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42.In or about January 2007 [the Father], [the child] and I were driving home from [a local] river. He asked me to pull over to the ATM. I pulled into the nearest Commonwealth ATM. [The father] got angry and said to me words to the effect of “I didn’t want to go here. I wanted to go to the one at [R]”. I said to him words to the effect of “We’re here now, just go here”. [The father] said to me words to the effect of “oh you’re a fucking mole”. [The father] then walked around to my window and threw the can at my window and it smashed the window all over me. I got out of the car to check on [the child] and then [the father] came up behind me and hit me with the can he was holding. I blacked out and fell over. When I woke up I was on the ground. A stranger came over to me and said words to the effect of “Are you all right?” [The father] started yelling at the stranger so he walked off. After I came to, [the father] made me drive home even though I did not want to as I felt really sick. I drove to [the father]’s parent’s house because I was scared that I would pass out again and there would be nobody to look after [the child]. When we go to [the father]’s parent’s home I got [the child] out of the car and handed [the child] to [the paternal grandmother] and said to her words to the effect of “Can you hold him, [the father]’s angry”. [The father] walked up behind me and pushed me. I turned around and then he grabbed me around the throat and tried to strangle me and he pushed me against the fridge. I could not breathe. I started to get dizzy and [the paternal grandfather] then intervened and pushed [the father] off me and said to him words to the effect of “Fuck off, don’t bring your shit into my house”. [The father] then left. I had bruises around my throat. That was the only time that [the father] had left marks on me that other people could see. Usually he would hit me around the head.
More recently, COPS records recorded an incident between the father and Ms L, which occurred on 29 May 2010. The COPS record records Ms L told police the father arrived at her home at about 8.00 pm that day. An argument developed about their relationship during which Ms L asked the father to leave her home. He refused. When she repeated her request, she said the father walked up to her and pushed her with both his hands in her chest. She fell and, while she was on the ground, the father kicked her. A short time later it is alleged he grabbed a knife from the kitchen and held it to his own throat. The father threatened to kill himself if Ms L made him leave. She ran to a neighbour for help and contacted police. When police arrived they observed she was very upset and too afraid to be by herself in her own home. Police noted her injuries and were concerned when she refused to make a statement or permit photographs to be taken. Appropriately, police obtained an urgent Apprehended Violence Order for Ms L’s protection from the father.
Notwithstanding the Apprehended Violence Order, the father and Ms L continued their relationship. The COPS records record another incident of violence at 12.15 am on 21 August 2010. Earlier that evening the father and Ms L had been out for dinner where they consumed a number of alcoholic drinks. Not long after they returned to Ms L’s home an argument developed. Ms L told police that while she was sitting on a lounge, the father punched her four or five times to the face. When she tried to use her mobile telephone, the father smashed it. She ordered him to leave and he responded by threatening to kill her mother, children and others to whom she was close. Ms L picked up a child’s car seat and threw it at the father. The car seat hit him in the face. He then punched her three times in the face, which caused her left eye to close, gave her a bleeding nose and gums. Ms L said she was only able to escape after she picked up a knife. She went to her neighbours and telephoned police.
It was not entirely clear what then occurred. There is no doubt the father was arrested and refused bail on 26 August 2010. It would appear he was charged with malicious damage, common assault, possibly also assault occasioning actual bodily harm and breach Apprehended Violence Order. Unfortunately, the police records are not sufficiently up to date in regards to these recorded matters. The Court was informed by the father’s solicitor the father claimed he was acquitted on all matters. Irrespective of this, the evidence demonstrates recent family violence by the father when affected by alcohol.
Clearly, had the child been in the father’s care on either of the occasions referred to in the COPS records which involve Ms L, the child would have been at serious risk of harm. The situations were clearly out of control and dangerous.
The evidence strongly indicates a current, high level risk to the child of exposure to family violence by the father. This type of behaviour is emotionally and psychologically damaging and renders the father an unsatisfactory role model.
I was troubled by the mother’s notion that the Court should make provision for ongoing contact between the child and father, albeit in a supervised setting. She had been cautiously optimistic that the father’s protestations he no longer abused alcohol and family violence was a thing of the past, could be accepted at face value. Thus, in the carefully contained environment in which the child’s relationship with the father had developed, she saw benefit to the child in being able to maintain a relationship the child had shown he enjoyed. In other words, potentially this was a valuable relationship which enhanced the child’s sense of identity.
While the mother’s optimism is to her credit, I believe it is misplaced. In my view, until the father has demonstrated he has engaged in significant therapeutic intervention which focuses upon the perpetration by him of family violence as well as alcohol abuse, he is unable to establish a meaningful and healthy relationship with the child. The child has not missed spending time with the father and, the father’s, in effect, disappearance from the child’s life since August 2010, from the child’s perspective, has been unremarkable. It would be a triumph of hope over experience, to re-establish even supervised visits for the child with the father until he has made the types of lifestyle changes to which I have made reference. Re-establishing the child’s relationship with the father before then is more likely to perplex the child because, the evidence indicates unless the father makes major lifestyle changes he will remain a poor role model and is unable to maintain an appropriately healthy relationship with his son.
Irrespective of whether the child has an ongoing relationship with the father, the mother will maintain his relationship with B. She is in contact with B’s mother and they agree the brothers will continue to see each other at a frequency agreed between them.
It is my hope the father will make the lifestyle changes he needs to make, not only for his own sake, but also for the child’s. Unless he does so, it is not in the child’s best interests to spend time or communicate with him. I am conscious this also means the child will lose contact with his parental grandparents and extended paternal family. Also, the prospect of future litigation is higher on this approach compared to orders for supervised visits which would automatically be discharged if the father failed to attend or there was more violence or alcohol related events. Notwithstanding these factors the child’s best interests would not be served by the reestablishment of visits with a parent who thus far has demonstrated serious parenting deficits.
The mother will have sole parental responsibility. It would be untenable to require her to communicate with the father and involve him in major decisions about the child. It is too high a risk he may be abusive towards her and, in circumstances where the father will not be spending time with the child, he will not have the type of information about the child which would make his input into these types of decisions constructive.
For these reasons I make the orders identified at the beginning of this judgment.
I certify that the preceding eighty-four (84) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan delivered on 1 February 2011.
Associate:
Date: 1 February 2011
Key Legal Topics
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Family Law
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Jurisdiction
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