George & Nichols
[2016] FamCA 519
•29 June 2016
FAMILY COURT OF AUSTRALIA
| GEORGE & NICHOLS | [2016] FamCA 519 |
| FAMILY LAW – CHILDREN – where the child has been living with the mother and not spending any time with the father – where the father was acquitted of charges of sexual offences against the child’s half-sister – where the father was preoccupied with these charges – where the father did not ask any question of any witness in relation to the subject child – where the father did not direct any submission to the child’s time with him - where the father admitted acts of family violence – where father’s own admissions form basis for finding that the child would be exposed to an unacceptable risk of harm were she to spend time with the father – where the mother genuinely believes the father sexually assaulted her daughter from a previous relationship – where that belief is not irrational or baseless – where the mother’s parenting capacity would be compromised were the child to spend any time with the father. |
| Family Law Act 1975 (Cth) |
| Baghti & Baghti [2015] FamCAFC 71 Blinko & Blinko [2015] FamCAFC 146 Goode & Goode (2006) FLC 93-286 The Marriage of N & S (1996) FLC 92-655 |
| APPLICANT: | Mr George |
| RESPONDENT: | Ms Nichols |
| INDEPENDENT CHILDREN’S LAWYER | Sue Duncan |
| FILE NUMBER: | BRC | 2291 | of | 2013 |
| DATE DELIVERED: | 29 June 2016 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Carew J |
| HEARING DATE: | 14 - 16 June 2016 |
REPRESENTATION
| APPLICANT: | Self-represented |
| COUNSEL FOR THE RESPONDENT: | Mr. D. Carlton |
| SOLICITOR FOR THE RESPONDENT: | Burchill & Horsey Lawyers |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr. G. Andrew |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms. Sue Duncan, Legal Aid Queensland |
Orders
The mother shall have sole parental responsibility for the child B born … 2010.
B shall live with the mother.
The father shall spend no time with B.
The father is restrained and an injunction hereby issues restraining the father from initiating or causing any other person initiating any communication with B or from attending at any school that she attends from time to time.
The father is restrained and an injunction hereby issues restraining the father from approaching Ms Nichols or Ms C Nichols born .. 1995 or attending at their place of residence or their place of employment.
The father shall forthwith delete from any device in his possession or control any image of Ms C Nichols, save that, prior to doing so, the father may if he chooses, provide a USB memory stick of all such images to the Independent Children’s Lawyer to be held in safe custody for a period of 12 months whereupon it shall be destroyed.
Miscellaneous
All outstanding applications are dismissed and removed from the list of cases awaiting finalisation.
The appointment of the Independent Children’s Lawyer is discharged.
Pursuant to section 65DA(2) and section 62B, the particulars of the obligations this order creates and the particulars of the consequences that may follow if a person contravenes this order, 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 this order.
IT IS NOTED that publication of this judgment by this Court under the pseudonym George & Nichols 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 BRISBANE |
FILE NUMBER: BRC 2291 of 2013
| Mr George |
Applicant
And
| Ms Nichols |
Respondent
And
Independent Children’s Lawyer
REASONS FOR JUDGMENT
The parties to this parenting dispute are Mr George (“the father”) and Ms Nichols (“the mother”).
The father is seeking an order that he commence to spend time with his daughter, B (“the child”), born in 2010, initially supervised at a contact centre for three months and thereafter for two hours each alternate Saturday.
The mother is seeking an order for sole parental responsibility and that the father spends no time with the child.
Background Facts
The father and mother commenced cohabitation in or about 2008 but had been in a relationship prior to that and then separated for some years. They married in 2010 and separated on 19 January 2012. They divorced on 5 June 2013.
The father has not seen the child since January 2012. On 4 February 2014 an interim order was made restraining the father from attending the child’s day care centre or contacting the child by any means directly or indirectly.
The mother has another child, Ms C Nichols (“Ms C”), born in 1995 who lived with the parties throughout their relationship.
In 2013 the father was acquitted of the following criminal charges in relation to Ms C:
a)That on 19 January 2012 he unlawfully and indecently assaulted her;
b)That on 19 January 2012 he raped her;
c)That on 19 January 2012 he unlawfully assaulted her;
d)That on 3 February 2012 he offered to give her money on an agreement that she, who was to be called as a witness in a judicial proceeding, should withhold true testimony.
Ms C is a witness in these proceedings in the mother’s case and maintains her allegations against the father which formed the basis for the criminal charges against him.
The father denies those allegations.
B lives with her mother and Ms C.
Significant issues
On 11 March 2016 when this matter was set down for trial, the following issues were identified as issues to be considered in the determination of these proceedings:
a)Allegations that the father sexually assaulted and raped Ms C on 19 January 2012;
b)Allegations of family violence made by the mother against the father in relation to the father’s treatment of her and her daughter, Ms C; and
c)The impact that any order for the child to spend time with the father may have on the child and/or the mother if it is determined that the father does not pose an unacceptable risk to the child.
Proposals of the parties and Independent Children’s Lawyer
Although asked on the first day of trial to state precisely what order he was seeking the father did not particularise the order he was seeking until he commenced submissions. He seeks the following order:
a)That my reintroduction to the child, [B] born … 2010 be done in a gradual and safe atmosphere. I suggest a Brisbane contact centre for a period of 2 hours every Saturday. I suggest a 3 month period, giving the staff at the contact centre amply [sic] time to write reports on the behaviour of all parties.
b)That presents which the father gifts the child be kept at the mother’s residence in the child’s room including birthday, Easter, Christmas and Sympathy Cards.
c)That the child spend time with the father via telephone contact each Monday, Wednesday and Friday for a period of up to 15 minutes after 6.30 pm to be initiated by the mother.
d)That neither party denigrate nor allow the other to be denigrated to or in the presence of the child, [B].
e)On completion of 3 months at a contact centre, that the child [B] spend 2 hours every alternate Saturday with the father.
The mother seeks the following order:
a)That the Mother have sole parental responsibility for the child B born … 2010 (“the child”).
b)That the child live with the Mother.
c)That the Father is retrained and an injunction issue restraining the Father from attending the child’s day care or school as the case may be or contacting the child by any means directly or indirectly.
The Independent Children’s Lawyer seeks the following order:
a)That the mother, [Ms Nichols] have sole parental responsibility for the child [B] born … 2010 (“the child”).
b)That the child live with the mother.
c)That the father spend no time nor communicate with the child.
d)That the father be restrained from having any contact directly or indirectly with the mother of the child.
How parenting applications are determined
Part VII of the Family Law Act 1975 (Cth) (as amended) (“the Act”) sets out the objects, principles and matters that must be considered when determining what parenting order is proper, but such consideration will focus in particular on matters raised as significant issues by the parties and the Independent Children’s Lawyer. (see Goode & Goode (2006) FLC 93-286; SCVG & KLD Error! Hyperlink reference not valid.; Banks & Banks (2015) FLC 93-637)
Importantly, in this case, the Court is not required to make findings of fact on every factual dispute raised by the parties (Baghti & Baghti [2015] FamCAFC 71).
Section 60B(1) provides that the objects of the Act 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.
Section 60B(2) provides that 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 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration.
Section 60CC then outlines the primary and additional considerations that the Court must consider in determining what is in the best interests of the child. In considering the primary considerations the Court must give greater weight to the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Section 60CG imposes a statutory imperative to ensure that a parenting order does not expose a person to an unacceptable risk of family violence and empowers the Court to include in the Order any safeguards that it considers necessary for the safety of those affected by the Order.
‘Abuse’ in relation to a child, is defined in s 4 of the Act and means:
(a)an assault, including a sexual assault, of the child; or
(b)a person (the first person ) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is unequal power in the relationship between the child and the first person; or
(c)causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or
(d) serious neglect of the child.
Family violence is defined in s 4AB of the Act:
(1)For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member), or causes the family member to be fearful.
(2)Examples of behaviour that may constitute family violence include (but are not limited to):
(a)an assault; or
(b)a sexual assault or other sexually abusive behaviour; or
(c)stalking; or
(d)repeated derogatory taunts; or
(e)intentionally damaging or destroying property; or
(f)intentionally causing death or injury to an animal; or
(g)unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
(h)unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
(i)preventing the family member from making or keeping connections with his or her family, friends or culture; or
(j)unlawfully depriving the family member, or any member of the family member's family, of his or her liberty.
(3)For the purposes of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.
(4)Examples of situations that may constitute a child being exposed to family violence include (but are not limited to) the child:
(a)overhearing threats of death or personal injury by a member of the child's family towards another member of the child's family; or
(b)seeing or hearing an assault of a member of the child's family by another member of the child's family; or
(c)comforting or providing assistance to a member of the child's family who has been assaulted by another member of the child's family; or
(d)cleaning up a site after a member of the child's family has intentionally damaged property of another member of the child's family; or
(e)being present when police or ambulance officers attend an incident involving the assault of a member of the child's family by another member of the child's family.
(emphasis in original)
Section 61DA provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. The presumption does not apply where there are reasonable grounds to believe a parent has engaged in abuse of the child or another child who, at the time, was a member of the parent’s family or where there are reasonable grounds to believe a parent has engaged in family violence, and the presumption may be rebutted if the court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests.
Where the presumption does apply, the Court is required to consider s 65DAA as to whether equal time or substantial and significant time is in the child’s best interests and reasonably practicable.
Section 65DAC makes clear that an order for shared parental responsibility requires decisions about major long-term issues to be made jointly after consultation.
Although I may not specifically discuss in these reasons each subparagraph of each relevant section in the ‘legislative pathway’ I have considered all sections as required when making my determination (Banks & Banks (2015) FLC 93-637).
While the issue of the father’s alleged sexual assault and rape of Ms C is clearly a relevant matter it is not the central issue to be determined in this case. The central issue is what parenting order meets the child’s best interests.
The High Court said in M & M (1988) 166 CLR 69 at 76; (1988) FLC 91-979 at 77,080 and 77,081:
…The fact that the proceedings involve an allegation that the child has been sexually abused by the parent who seeks custody or access does not alter the paramount and ultimate issue which the Court has to determine, though the Court's findings on the disputed allegation of sexual abuse will naturally have an important, perhaps a decisive, impact on the resolution of that issue.
But it is a mistake to think that the Family Court is under the same duty to resolve in a definitive way the disputed allegation of sexual abuse as a court exercising criminal jurisdiction would be if it were trying the party for a criminal offence. Proceedings for custody or access are not disputes inter partes in the ordinary sense of that expression: Reynolds v. Reynolds (1973) 47 A.L.J.R. 499; 1 A.L.R. 318; McKee v. McKee (1951) A.C. 352 at pp. 364-365. In proceedings of that kind the Court is not enforcing a parental right of custody or right to access. The Court is concerned to make such an order for custody or access which will in the opinion of the Court best promote and protect the interests of the child. In deciding what order it should make the Court will give very great weight to the importance of maintaining parental ties, not so much because parents have a right to custody or access, but because it is prima facie in a child's interests to maintain the filial relationship with both parents: cf. J. v. Lieschke (1987) 162 C.L.R. 447 at pp. 450, 458, 462, 463-464.
Viewed in this setting the resolution of an allegation of sexual abuse against a person 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 interests 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 on the balance of probabilities.
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.”
…
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. …
In considering the ‘unacceptable risk’ questions Fogarty J observed in The Marriage of N & S (1996) FLC 92-655, at 82713-4:
Thus, the essential importance of the unacceptable risk question as I see it is in its direction to judges to give real and substantial consideration to the facts of the case, and to decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm to the child. Thus, the value of the expression is not in a magical provision of an appropriate standard, but in its direction to judges to consider deeply where the facts of a particular case fall, and to explain adequately their findings in this regard.
Does the father pose an unacceptable risk of harm to the child?
Although the father’s case ostensibly concerns his daughter neither one question nor one submission was directed by him to matters pertaining to the child. The entire focus of the father’s case was on his perception of how he had been ‘wronged’ by the mother and Ms C. Indeed, he concluded his submissions with the statement:
My criminal history was nothing ‘til I met these guys
The focus of the father’s case may in part be understood in that after the father’s acquittal the presiding judge made the following rather extraordinary comments:
You have been lucky today, but I want you to know that you are unlikely to ever be this lucky again. …
I can’t make any orders against you, but you should know that you need to stay away from [Ms C]. You need to stay away from women who have daughters and you need to stay away from girls.
Whether or not those comments were warranted is not of concern to me because this is not a re-hearing of the criminal trial. I am under no obligation to make findings in relation to the matters which were the subject of the criminal proceedings. I do not feel impelled to do so in this case because the father’s own admissions during the course of this trial leave me in no doubt that he presents an unacceptable risk of harm to his daughter were he to have unsupervised time with her.
During the current proceedings the father has admitted to the following conduct in relation to Ms C:
a)Secretly installing a camera in the ceiling fan in her bedroom and in the one bathroom in the house with the intention of watching her;
b)Choking her around the throat and pushing her back against the wall on a number of occasions;
c)Putting her in a headlock on a number of occasions including on 19 January 2012 and after them both falling down 13 steps, again grabbing her in a headlock;
d)Jumping on her bed on all fours wearing only boxer shorts while calling her a cow and when his penis was exposed leaving her bedroom;
e)Taking photos and videos of her secretly and/or against her wishes and on a number of occasions when she was wearing only a revealing nightie;
f)Accessing her Facebook account without her knowledge or consent and transferring photos of her in short shorts and a midriff top from her Facebook page onto his phone;
g)Accessing her Instagram account in 2015 without her knowledge or consent and using his phone to take a photo of his daughter, the child, and posting it on his Facebook page with the caption “this is my daughter, thanks to Queensland/Australian mother, she does not know I exist or lover (sic) her”;
h)Retaining on his phone “about 50 photos” of her and “about 5 videos” (I reject his explanation that he retained them for the purposes of the criminal proceedings which concluded in … 2013 or for this proceeding when only a handful of the photos were tendered and they came from the DPP subpoenaed records).
Although the father contends that he did not ever view any images from the cameras and that his purpose was to gather evidence upon which to convince his wife that Ms C had been sending sexually explicit photos of herself to boys I absolutely reject this contention for the following reasons:
a)He stated in these proceedings that the images taken by the cameras could not be recorded but only viewed ‘live’. That admission would rather defeat the purpose of gathering evidence upon which to convince his wife of Ms C’s conduct;
b)He specially built an attic, against the mother’s wishes, in which he slept and kept a television and computer from which he could secretly view the images;
c)He stated in these proceedings and in the criminal proceedings that he had not viewed any images because he had only installed the cameras about a week before he was arrested for rape. However, both Mr E and Mr D (a psychologist who prepared a sexual risk assessment of the father assessing his risk of offending to be low) gave evidence that the father had told each of them that he had in fact viewed images from the camera. Mr D, in particular, was definite in his recollection of this admission. Irrespective of whether he actually viewed the images, he admits it was his intention to do so.
The father made further admissions relating to his conduct more generally:
a)He had permitted Ms C to host a party at the family home on 9 December 2011 against her mother’s wishes on a night when the mother was to be away overnight at her work Christmas party. He had the care of the child, then only a toddler. When the party got out of hand he produced an unlicensed firearm. The father was attacked and a beer bottle was smashed over his head. He left the child at the home with Ms C to go to the hospital. The child was present throughout the party when the home was significantly damaged and the father attacked. He made no attempt to contact the mother who returned home the following day to find the child walking around the home on her own with smashed glass everywhere.
b)On or about 11 December 2011 he assaulted Ms C by pushing her up against a wall and grabbing her around the neck with his hand. He also assaulted the mother by pushing her and when he was locked outside the home he gained entry by smashing his fist through a pane glass panel in the door thereby severing tendons in his arm. The child was present.
c)On 25 March 2016 he posted the following on his Facebook page;
Ah, Good Friday. A time to spend with family.
Or a police station if the other half of the family that you wished to have, wishes nothing more than making Bull Shit claims to bias a Family Law Trial. Eat dirt Bitches the cops want nothin to do with your muck raking.
One all.d)His mother, Ms F George, posted on his Facebook page:
You were so handsom (sic) before that woman derailed you
It was those 2 despicable bitches
I always knew about THAT woman … crazy eyes!!!! And even a crazier daughtere)He posted on his Facebook page on 29 May 2014:
[A ‘cartoon’ stating]
I typed “Bitch” into my GPS and guess what? I’m in your driveway. Vroom Vroom motherfucker
[And then stated]
nar we all know who I meanHe conceded he was referring to the mother.
f)The father breached his bail conditions in the criminal proceedings and was incarcerated for thirteen months before the criminal trial in 2013.
The father adduced evidence in his case (in the current proceedings) of a conversation he secretly taped with the mother on or about 15 January 2012. The audio from the father’s phone was played in court and a transcript prepared by Auscript was tendered by the father and became exhibit 2. It was not possible to obtain an audio version as part of the exhibit. The father sought to rely upon the audio (and ultimately the transcript) as evidence that the mother conceded she had told him years ago that Ms C was conceived as the result of a rape but that she had ‘gotten over that’. His purpose was to suggest that this evinces a ‘pattern’ of lying. He suggested that Ms C was prevented from seeing her father as a result of a false allegation of rape and now the child was being prevented from seeing him as a result of a false allegation of rape. He had no evidence that the mother’s rape was a fabrication and indeed he believed it to be true throughout his relationship with her. During her oral evidence the mother agreed that she had told the father that she had been raped and that Ms C was conceived as a result. She confirmed that this was true. The father put to the mother that Ms C had never met her father and that the mother had never received child support from him. If anything, both matters are consistent with the mother’s statement that she had been raped. They are certainly not evidence of a ‘pattern of behaviour’.
Exhibit 2 discloses serious matters very much against the father’s interest in this case. It includes the following evidence:
a)Not only had the mother been raped but had been held captive in a backyard shed and beaten senseless;
b)She had undergone counselling;
c)Ms C had complained to her mother about the father jumping on her with only underwear on (the father’s response to this was “at least I’ve got my undies on”);
d)He spoke to Ms C as if she were a “piece of shit” and had sent her emails and SMS calling her a ‘c’;
e)He had kicked Ms C in the shins while wearing steel capped boots;
f)He pulled Ms C by her hair dragging her along the carpet;
g)When she was only 8 he nearly pushed her off her chair;
h)He had tried to choke Ms C four times;
i)He tried to justify his treatment of Ms C as arising because of her bad behaviour;
j)The mother had told him many times not to treat Ms C in the way he did;
k)He had put Ms C on the floor in a headlock;
l)He sought to justify his conduct by referring to it as a ‘restraining hold’;
m)He did not believe he had done anything wrong;
n)The mother had suffered two miscarriages;
o)The mother told him it was not his role to parent Ms C as she was not his child;
p)If he did not desist he could move out or the mother would move out;
q)The mother told him she could not live with him and did not trust him;
r)That he had cut off half of the child’s bedroom to construct the attic, which he wanted, and the mother did not.
During the secretly recorded discussion the father made no attempt to dispute or challenge the mother about any statements she made about his past behaviour to Ms C, nor in court during his cross-examination or evidence in chief, save for suggesting that the ‘kick’ with steel capped boots was more of a ‘tap’ which the mother denied. He repeatedly demonstrated in court his hold on Ms C both in a headlock and holding her by the throat. He sought to minimise his behaviour. I was left in no doubt that he was repeatedly violent to Ms C over the years and I am in no doubt that his secretly installing cameras in Ms C’s bedroom and bathroom was for the sole purpose of seeking to satisfy his own prurient sexual interest in Ms C. It was abusive in nature and a complete breach of trust as her stepfather.
Mr D is a psychologist who conducted a sexual risk assessment of the father and concluded:
86. Assessment results indicate that [Mr George] is toward the lower end of risk of sexual offending recidivism. The author acknowledges the limitations within this form of risk assessment. [Mr George’s] opinion of [Ms Nichols] underlines their acrimony.
…
88. This assessment has identified some current potential risk factors. These are:
·A lack of peers who are positive supports to [Mr George’s] rehabilitation
·Relationship instability
·Emotional instability, and
·The use of sex as a means of coping.
89. In addition, one issue which was at the core of the charged offences was the lack of child focussed responses to [Ms C] when she was apparently having possible emotional and peer related problems.
90. … [M]y assessment of [Mr George], … did indicate a form of coercive control of [Ms C] and poor generation of alternatives in managing a child who had alleged behaviour problems.
91. [Mr George] also reported high levels of alcohol consumption. I formulate his alcohol consumption as another means of suppressing his negative mood. His self reported alcohol consumption is high …
I note Mr D’s reference to forensic studies which found that “incestuous risk does not vary significantly between father-daughter or stepfather-stepdaughter”.
Mr D opined that if the father were to have a role in the child’s life he would be in need of learning and developing skills in relation to a range of specific matters. Mr George attended upon a psychologist, Ms G, for 10 therapy sessions in 2014 ostensibly to address the matters raised by Mr D. A letter from her is annexed to Mr George’s affidavit filed 27 February 2015. Apart from stating that certain matters were “discussed” the report provides no other observation or opinion. It is of no assistance.
In relation to Mr D’s report I note the following:
a)Mr D rightly acknowledged the limitations on his assessment which depend on the father’s self reporting; and
b)The father admitted accessing the internet when completing one test administered thereby invalidating it.
While the assessment results indicate the father is at the lower end of risk of sexually offending I nevertheless regard that risk as an unacceptable one in the circumstances of this case.
I also find the father to be a violent man who has failed to demonstrate any insight into the impact of his violence upon the mother, Ms C or the child. He sought to minimise his violence and I find him to present an unacceptable risk of either perpetrating or exposing the child to violence were he to have unsupervised time with her.
Further, I am not persuaded that the father has any great motivation in establishing a relationship with his daughter. I make this finding because, despite it being brought to the father’s attention that he had not asked a single question about the child or how or when he might be able to spend time or communicate with her he responded that he had no question to ask about that. This case from the father’s perspective was all about the allegations made against him. As Mr E, the family report writer, noted in his interview with the father:
I also note that [Mr George] offered very little about [the child] in the semi-structured interview I conducted with him. It is possible that his thoughts and feelings regarding her mother and half-sister account for a degree of his motivation in pursuit of the opportunity to spend time with her, but I do accept that this statement is somewhat speculative. However, the Court may choose to consider it when trying to fully understand what progress might be made in this matter.
The father during his submissions made no reference at all to the child. Instead he focussed entirely on himself and the ‘lies’ of the mother and Ms C. This is despite it being brought to his attention that he had made not one submission regarding the central issue in the proceedings.
I am left in little doubt that the father has prosecuted this case primarily as a means of pursuing the mother and Ms C. He is a violent man and shows no insight into the damaging impact of his violent behaviour. He provided no evidence that he has developed any insight into how to parent in an appropriate and safe manner. Further, I find that the father could not contain his poor opinion of the mother or Ms C in the child’s presence were he to spend time with her even on a supervised basis. I make this finding in particular based upon his Facebook comments and the manner in which he conducted his case. Accordingly, I find that the child would be likely to suffer psychological harm if required to spend time with the father.
An alternative basis for rejecting supervised time
If I am wrong in my assessment that even supervised time with the father would expose the child to an unacceptable risk of harm I have no evidence that any contact centre or private facility would be prepared to offer supervision in this case given the nature of the allegations made against the father. I would not consider appointing any family member or friend of the father’s as a supervisor. I note his mother’s comments on his Facebook page in this regard.
I also need to consider the impact on the mother’s parenting capacity were I to order supervised time.
Evidence of Mr E, psychologist, family report writer (report dated 13 October 2014)
Mr E expressed the following opinions relevant to the issue of whether the child should spend supervised time with her father (paraphrased):
a)The mother is convinced Ms C was raped by the father and nothing is likely to dissuade her from that view;
b)She suffers the guilt of that occurring in her home;
c)The mother would be unlikely to be able to facilitate the child spending time with her father by taking her to a contact centre;
d)The mother would be unable to promote any relationship and this would place the child in an invidious position as it is unlikely that she will remain oblivious to the reasons her father is held in such low esteem in her mother’s household;
e)Even receiving cards or gifts would be difficult as the mother or Ms C would have to be the conduit for the child’s receipt of them and it is unlikely to be a positive experience for her if that is the case.
More generally, in relation to any time the child might have with the father, whether supervised or unsupervised, he opined:
61. … Any time that [the child] might be required to spend with her father will impact significantly upon her mother and upon [Ms C], given the beliefs they hold about them. [sic] Such an impact is likely to affect [the child] to the point that she will become more anxious and generally unsettled, as her mother and sister work to cope with having [Mr George] as part of their lives again. I am not confident that [Ms Nichols] will be able to fully function as an effective parent to [the child] if the child is required to spend time with her father. She feels a burden of responsibility in relation to the harm she believes that [Mr George] caused to [Ms C] and I consider that she will be very enlivened to the possibility that he may also hurt [the child] in some way.
I accept Mr E’s opinions.
Evidence of Dr H
Dr H interviewed the mother for the purposes of these proceedings on 9 April 2016 in order to provide an assessment on “what impact any order for [the child] to spend time with the Father may have on the Mother, if it is determined that the Father does not pose an unacceptable risk to the child.” While she was not asked to consider specifically a situation where the child might only have supervised time I nevertheless consider that her observations and opinions provide some assistance in making the evidentiary assessment of the likely impact. In reporting on her interview with the mother she states:
1.5.3 [Ms Nichols] at interview discussed the emotional toll that unfolded due to [Mr George’s] actions. She reported that she has had face the reality that her daughter was abused by her ex-husband, that she was betrayed in a profoundly traumatic manner by [Mr George], that she failed to protect her daughter as a result of his disturbing capacity to manipulate herself and her daughter, that [Mr George] continues to cause fear in herself and her daughter/s due to his stalking behaviours and threats, that her capacity to function as a parent has been highly challenged due to mental anguish and unrelenting ‘manipulations’ by [Mr George] and financially, there has also been a huge cost that is an additional layer of stress to the caregiving context. [Ms Nichols] expressed high levels of anxiety in regards to [Mr George] spending any time with [the child] as “she doesn’t know him and I am not able to support her in spending time with him. I just can’t reassure her that she would be safe with him in any way. Bringing her into his life now, would need so much support and I cannot give it. He has done nothing to help this situation. He thinks it’s his right to see [the child]. She is not a piece of property, she’s a little girl.” [Ms Nichols] is highly fearful that she will placed in a situation where she is required by law to compromise her capacity to protectively parent her children, [Ms C] and [the child]. She expressed feeling that, “I feel like I am under scrutiny, that I am a bad mother for not allowing him to see [the child], but I know that making her see him is bad mothering. He raped my daughter and has been nothing but aggressive. I am nervous all the time that he is going to take [the child]. He keeps doing things that keep us all on edge… like turning up where [Ms C] is, going to [the child’s] day care, leaving notes on [Ms C’s] car … This kind of thing and now, he wants to spend time with [the child]”.
1.5.4 … At interview, [Ms Nichols] was notably anxious in regards to ‘coming up with some kind of options that will keep [Mr George] happy”. When asked what underpinned her anxiety here, she responded “it feels like I am the one who has to make the changes, plan out what will be acceptable so that this nightmare can stop. It’s like the onus is me to solve a problem I did not create and have to live with every day. [Ms C] needs to be able to recover from this, we all do. I just know that there is no way to escape from [Mr George]. He won’t stop harassing us. We are the ones who keep having to get evidence and prove it and he does nothing, he doesn’t have to do anything.”… [Ms Nichols] further expressed a high degree of concern that if the court determined that [Mr George] ought to spend time with [the child], even supervised time, “this would, as I had said, force me to place [the child] in what I considered to be an unsafe place. That goes against every mothering instinct I have. Also, [Ms C’s] mental health would be affected because she would have to face [the child] going to see him. This is a situation that I just can’t hold together. I can’t support this at all.”
1.5.5 … It is difficult to form an opinion other than that any arrangements that force [Ms Nichols] to facilitate a relationship between subject child [B] and [Mr George] would have a highly deleterious effect on her mental health and parental capacity. It would further in all likelihood, impact negatively upon [Ms Nichols’] older daughter [Ms C] by continuing to expose her to the prospect that her younger more vulnerable sister is spending time with [Mr George] whom she understandably identifies as high risk. It may well be flagged that [Ms Nichols] is perhaps attempting to prevent [Mr George] from having a relationship with his daughter and that this will have a deleterious impact on subject child [the child’s] well-being or that of [Mr George]. This is of course a possibility and not ideal, however, it is more likely as demonstrated in research, that continued exposure to a caregiving context that is fraught with ambivalence, fear, uncertainty and anxiety, as would most likely result if it was the case that the court ordered time with [Mr George], is more likely to produce negative outcomes for subject child [B]. It may be assessed that [Ms Nichols] requires assistance to improve her capacity to support and facilitate the child spending time with her father however, this kind of logic tends to position mothers with ongoing responsibility of providing primary parenting whilst affording fathers, even abusive and high risk fathers, with a subversive yet powerful form of control over the maternal parenting paradigms. This creates a caregiving context fraught with problematic attachment patterns that are most likely to produce poor outcomes for [the child], as well as her sibling [Ms C].
1.5.6 Overall and in summary, it is my assessment that any orders made ought to in no way be at the expense of subject child [the child’s] current caregiving context and her right to safety and security. It is my assessment that any provision that requires [Ms Nichols] to facilitate a meaningful relationship between [the child] and [Mr George] creates an untenable tension for [Ms Nichols] that will likely serve only to further compromise an already vulnerable caregiving context and this is without clear benefits to [the child], indeed, there are compelling theses that this would be to her detriment. [The child] is a young vulnerable child who is approaching school age. Compromising her caregiving context serves to deny her a safe and secure base that in turn creates a basis for ongoing mental health disturbances. Furthermore, research demonstrates that under these kinds of circumstances where risk of harm is high, consideration ought be given to the developmental stage of the child, the history of relationship, the actions and behaviours of the offender, the capacity of the offending parent to address underpinning issues and the demonstrated ability of the offending parent to recognise the harm and take responsibility for same. There is little evidence of this at this time, and as such it seems more than reasonable and rather a necessary act of protective parenting, that [Ms Nichols] assume her current position of no contact between [Mr George] time with subject child [B].
(Errors and omissions in original; footnotes omitted)
While Dr H makes a number of assumptions about the harm presented by the father I am nevertheless assisted by her observations of the mother and her reference to forensic studies to support her opinions. I accept her evidence in relation to the likely impact on the mother and the child if the child were to spend time with the father.
What Dr H and Mr E were not aware of at the time of their assessments was the mother’s perhaps greater vulnerability given her history of having been subjected to a violent rape many years ago and having suffered two miscarriages.
The mother’s presentation during the trial
My own observations of the mother throughout her cross-examination by the father was of a person significantly affected by having to answer questions from her ex-husband even though she was not present in the court room. She and Ms C participated in the court process by video link given the allegations made in the case. At one stage the proceedings were interrupted due to the mother’s distress. The same occurred when Ms C was cross-examined even though the questions prepared by the father were asked by counsel for the Independent Children’s Lawyer.
Russell and Close factor
In Russell and Close (unreported, Family Court of Australia Full Court, Fogarty, Baker and Lindenmayer JJ, 25 June, 1993), at paragraphs 32 and 33 the Full Court held:
In upholding children’s right to protection from sexual, psychological and/or emotional harm, the court must take into account any anxiety on the part of the primary caregiver concerning the child’s exposure to potential harm where such anxiety is likely to impact adversely on that parent’s caregiving ability.
In taking into account the belief of the custodial parent of abuse by the non-custodial parent of the children and the effect of such belief on that parent as primary caregiver of the children, and consequent harm to the children, a subjective test is employed. However, it must be shown that such belief on the part of the custodial parent is genuinely held. Where it appears on the whole of the evidence that such belief is entirely irrational and baseless, the genuineness of the subjective belief of the custodial parent will clearly be open to doubt.
In Blinko & Blinko [2015] FamCAFC 146 (23 July 2015) the Full Court held:
83. It may be taken as well established by a line of authorities generally acknowledged to commence withRussell & Close(Unreported Full Court, 25 June 1993) that the following are correct statements of principle:
oIf a Court is satisfied that a parent represents an unacceptable risk of harm to a child, then unless that risk is able to be sufficiently managed or ameliorated by, for instance, supervision of any time or communication between the parent and the child, the best interests of the child may require an order prohibiting that parent from spending time or communicating with the child;
oIf the Court does not find that a parent represents such an unacceptable risk of harm, nonetheless it may take into account anxiety on the part of the other parent arising from their genuine, but not necessarily rational, belief that the parent represents such a risk of harm. In such a case, the other parent’s belief must be genuinely held. If it is entirely irrational and baseless, then the genuineness of the belief would clearly be open to doubt. However where such a belief is genuinely held, if the child spending time with a parent would sufficiently erode the other parent’s capacity to properly care for the child, then that may of itself mean that the ensuing detriment to the child determines that it is in their best interests not to spend time or communicate with the parent;
oFurther, where the history of abuse, violence or like behaviour between two parents means that any continued interaction between them would similarly erode the resident parent’s capacity to care for the child, the need for peace and tranquillity in their household may be a more compelling need for the child and hence also might justify an order prohibiting the other parent from spending time or communicating with a child: see Sedgley & Sedgley(1995) FLC 92-623.
Despite his acquittal in criminal proceedings, Ms C maintains that the father sexually assaulted her and raped her. I accept that the mother believes her daughter and that she genuinely holds that belief. The father’s admitted actions of secretly installing a camera in Ms C’s bedroom and the bathroom would be sufficient on their own for me to conclude that the mother’s belief is not irrational or baseless.
Ms C gave evidence that if the father spent any time with the child she would kill herself. Whether or not she would do so, such a threat would add to the pressure and stress for the mother. The mother and Ms C have historically had a difficult relationship as highlighted by the father. There were frequent arguments between them during the marriage, sometimes resulting in physical altercations. There is no evidence before me that would indicate that their relationship continues to be fraught. Indeed, Ms C, no doubt at great personal cost, insisted on providing an affidavit in the proceedings and presenting herself for cross-examination although her main motivation was no doubt to protect her little sister.
I find that even supervised time between the child and the father would expose the child to an unacceptable risk of psychological harm given her mother’s genuinely held beliefs and the impact such time would be likely to have on the mother’s parenting capacity.
Other findings
The child has lived all her life with the mother and Ms C. She is about to start school.
At the time of the family report in October 2015 Mr E observed the child as follows:
56. … She interacted easily, and seemingly with familiarity, with her mother and with [Ms C]. She appeared to be a little cautious at first, but soon settled. She very clearly enjoyed the company of her mother and half-sister, who engaged with her spontaneously, naturalistically, warmly and very effectively. [The child] appeared to enjoy the chance to have their undivided attention. She was playful, curious and seemingly somewhat shy and reserved, but otherwise, she behaved in a manner appropriate for her age.
In her affidavit filed 5 April 2016 the mother deposes as follows:
18. [The child] is currently in prep and is doing well.
19. She doesn’t ask about her father and I ensure that no person denigrates her father to her or in the hearing of her.
20. She is healthy and is progressing well at school.
21. We reside in a four-bedroom house with all the usual amenities and all of [the child’s] needs are being met.
I accept that the child has and should continue to have a meaningful relationship with the mother and that the mother has the capacity to appropriately care for the child.
In relation to her relationship with the child, Ms C deposes as follows:
11. I have lived with [the child] since she was born.
12. We are very close and I often look after her for my Mother (“Mum”) if she needs to go somewhere or do something at the house. Mum and [the child] are really close and [the child] is very clingy to Mum. The only other person that she really goes to is me and my grandparents.
13. She doesn’t like when either Mum or I leave her.
14. We don’t talk about the Applicant in front of [the child] and she doesn’t ask about him.
I accept that Ms C is an important part of the child’s life and that they have a close relationship. I find that this relationship should continue and is of benefit to the child.
Currently the child has no relationship with the father and it is doubtful she would have any memory of him. He has not been involved in any aspect of her life at all since January 2012. I do not consider it would be to her benefit to have a relationship with him and even if it were, I find that the risk of harm to her outweighs any potential benefit.
As a result of the findings I have made in this case the presumption in relation to equal shared parental responsibility does not apply.
For the reasons set out above, I propose to make an order that the mother have sole parental responsibility and that the father spend no time and have no communication with the child.
I certify that the preceding seventy-one (71) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Carew delivered on 29 June 2016.
Associate:
Date: 29 June 2016
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