Harridge & Harridge
[2010] FamCA 445
•4 June 2010
FAMILY COURT OF AUSTRALIA
| HARRIDGE AND ANOR & HARRIDGE AND ANOR | [2010] FamCA 445 |
| FAMILY LAW – CHILDREN – RISK ASSESSMENT – Where the father has been incarcerated for offences involving child pornography – Consideration of unacceptable risk of the father and the role of orders in ameliorating such risk – Where the children would benefit from a meaningful relationship with the father – Where the mother and Independent Children’s Lawyer assert that the paternal grandparents present a risk of inadequate supervision of time between father and children – Consideration of risk of supervision by the grandparents – Orders shaped to mitigate the risks while allowing a beneficial, meaningful relationship between father and children to develop – Section 65L supervisory orders made for the explanation of orders to the children, monitoring of father-child time and liaising of community correctional officers with the family consultant and Independent Children’s Lawyer |
| Evidence Act 1995 (Cth) s 144 Family Law Act 1975 (Cth) ss 60CC, 65CA, 65DAA, 65DAC, 65L |
| CDJ & VAJ (1998) 197 CLR 172 Godfrey v Sanders [2007] FamCA 102 M v M (1988) 166 CLR 69 Marsden and Winch (No. 3) [2007] FamCA 1364 McCall & Clark (2009) FLC 93-405 McCoy v Wessex (2007) 38 Fam LR 513 N and S and the Separate Representative (1996) FLC 92-655 Napier v Hepburn (2006) 36 Fam LR 395 Partington v Cade (No 2) (2010) 42 Fam LR 401 Potter v Potter (2007) 37 Fam LR 208 Secretary, Department of Health and Community Services v JWB & SMB (1992) 175 CLR 218 |
| APPLICANTS: | Mr and Mrs Harridge (Snr) |
| 1ST RESPONDENT: | Ms Harridge |
| 2ND RESPONDENT: | Mr Harridge |
| INDEPENDENT CHILDREN’S LAWYER: | Ms O’Neill |
| FILE NUMBER: | BRC | 1484 | of | 2008 |
| DATE DELIVERED: | 4 June 2010 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Murphy J |
| HEARING DATE: | 8 – 9 March 2010 |
REPRESENTATION
| THE APPLICANTS: | Self-represented |
| COUNSEL FOR THE 1ST RESPONDENT: | Ms Howe |
| SOLICITOR FOR THE 1ST RESPONDENT: | Sempre Vero Lawyers |
| COUNSEL FOR THE 2ND RESPONDENT: | Mr Crews |
| SOLICITOR FOR THE 2ND RESPONDENT: | Peter Hofstee & Associates |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Fleetwood |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER | Legal Aid Queensland |
Orders
Parental Responsibility
IT IS DECLARED THAT the presumption of equal shared parental responsibility prescribed by the Family Law Act 1975 (“the Act”) is rebutted in the best interests of the children A born … May 2004 and N born … October, 2005.
In respect of all “major long-term issues” as that expression is defined in the Act the mother shall, save as is hereafter specifically ordered, have all the duties, powers, responsibilities and authority which the mother and father would, save for this order, otherwise have had by law in relation to the children.
Live With
The children shall live with their mother.
Section 65L Order
Pursuant to s 65L of the Act, the Director Child Dispute services shall appoint a family consultant to supervise compliance with these parenting orders within the meaning of the said section, and to thereby give assistance to the father and paternal grandparents as to compliance with, and the carrying out of, these parenting orders and their obligations pursuant to these orders.
Without limiting the generality of this s 65L Order (or the occasions upon which the family consultant might choose to see the children or any or all of the parties), the family consultant appointed pursuant to the previous paragraph of this order shall:
(a)As soon as reasonably practicable after the making of these Orders, and prior to the first period of time provided for in these Orders, see the children in the presence of the parties (in such manner as the family consultant shall consider appropriate) for the purpose of explaining the terms of these orders to the children in an age-appropriate way and for the purpose of explaining the obligations cast upon the parties by these orders, and their rationale, as explained in the court’s Reasons for Judgment;
(b)After the first two periods of time between the children and as proximate to the third occasion as reasonably practicable (being the first occasion upon which the father shall spend time with the children) to again see the children in the presence of the parties (in such manner as the family consultant shall consider appropriate) in preparation for their first period of time with the father and to reinforce the obligations cast upon the parties by these orders.
(c)After the period of time in January contemplated by the succeeding paragraph of these orders, to again see the children in the presence of the parties (in such manner as the family consultant shall consider appropriate) for the purposes of assessing the children’s progress and the supervision of time by the grandparents.
(d)Make and record observations of all matters considered relevant during each and all of such sessions conducted by the family consultant;
(e)Consult with the Independent Children’s Lawyer as considered appropriate;
(f)Consult with the father’s community corrections officer or such psychiatrist, psychologist, therapist or counsellor consulted by the father.
Time With the Father and Paternal Grandparents
The father shall not spend time with, nor communicate with, the children except in accordance with the succeeding provisions of these orders.
The paternal grandparents shall not spend time with, nor communicate with, the children save in accordance with the succeeding provisions of these orders.
Subject to the parties and children participating in the process contemplated by paragraph 5 of these orders, the children shall spend face to face time with the paternal grandparents from 9.00am to 5.00pm on a Saturday (or, in school holiday periods, another day of the week agreed in writing) nominated in writing by the mother not less than 21 days prior to its occurrence:
(a)In approximately late February, so as to be an approximate mid-point between the December / January and Easter school holiday periods;
(b)In the Easter school holiday period;
(c)In approximately late May so as to be an approximate mid-point between the Easter and June / July school holidays periods;
(d)Except in 2010, in the June / July school holiday period;
(e)In approximately mid-August, so as to be an approximate mid-point between the June/July and September / October school holidays;
(f)In the September / October school holidays;
(g)In approximately early November, so as to be an approximate mid-point between the September / October and December / January school holidays;
(h)In the first week of the December / January school holidays;
(i)In the last week of the December / January school holidays
Subject to the parties and children participating in the process contemplated by paragraph 5 of these orders the children shall in addition, spend face to face time with the paternal grandparents from 3.00pm until 6.00pm on Christmas Day in 2010 and between those hours each alternate year thereafter and from 9.00am to 12.00pm on Christmas Day in 2011 and between those hours each alternate year thereafter.
Subject to the parties and children participating in the process contemplated by paragraph 5 of these orders, the children shall spend face to face time with the father on the third and subsequent occasions provided for in paragraph 6 of these orders, and the occasions specified in paragraph 7 of these orders, with the whole of each and all such periods of time to be supervised by the paternal grandparents, who shall both be present for the whole of each and all such periods of time.
Communication
The father and grandparents shall be at liberty to send to the children by pre-paid post all such letters and cards as they might choose, provided that each and all are sent to the mother at the mother and children’s residence and the mother who shall be at liberty to read any and all such communications.
The father shall be at liberty to communicate by telephone with the children between 6.30 pm and 7.00pm each Wednesday (or such other day as might be agreed), but subsequent to the s65L consultation contemplated by paragraph 5(a) of these orders.
The paternal grandparents shall be at liberty to communicate by telephone with the children between 6.30pm and 7.00pm each third Wednesday subsequent to the s65L consultation contemplated by paragraph 5(a) of these orders.
Neither the father nor grandparents shall communicate with the children by e-mail, facebook® or other form of computer communication, or by text message.
Mandatory Injunctions
Pursuant to s 68B of the Act and so as to give better effect to the parenting orders hereby made, each of the parties shall do all such things, sign all such documents and pay all such reasonable fees as might be required to:
(a)Participate in the s 65L process contemplated by paragraph 5 of these orders;
(b)Provide to the Independent Children’s Lawyer, the name and other identifying details of any and all courses undertaken by any of them having as their focus sexual offending involving children (including offences involving child pornography) or which seek to provide an understanding of the nature of such offending;
(c)Authorise the family consultant undertaking the process required by paragraph 5 of these orders and/or the Independent Children’s Lawyer to discuss with, and receive information from, any psychiatrist, psychologist, counsellor or therapist consulted by any of the parties with reference to sexual offending involving children (including offences involving child pornography) or which seek to provide an understanding of the nature of such offending.
Pursuant to s 68B of the Act and so as to give better effect to the parenting orders hereby made, the father shall do all such things, sign all such documents and pay all such reasonable fees as might be required to authorise and request the community corrections officer monitoring his probation (or parole as the case may be) to provide to the family consultant undertaking the process required by paragraph 5 of these orders and/or the Independent Children’s Lawyer details of all courses, treatment or counselling required of the father as a condition of his parole.
The mother shall keep each of the father and the paternal grandparents appraised of:
(a) The children’s residential address;
(b)A telephone number upon which paragraphs 10 and 11 of these orders can be facilitated;
(c)The name of any child care centre, kindergarten or school as the case may be at which the children or either of them is enrolled
The mother shall authorise any child care centre, kindergarten or school as the case may be to provide to the father all such information as to the progress of the children as the father might reasonably request and, failing the provision of any such specific authority by the mother, this order shall, of itself, be authority for the father to receive all such information.
That, at the earliest possible time or within 4 hours, each party shall inform the other party of:
a)Any serious accident or the diagnosis of any significant medical condition suffered by either child;
b)Surgery or the potential for same; hospitalisation or treatment for any serious injury, illness or disability pertaining to either child.
Authorisation of Publication
Pursuant to s 121(9)(g) of the Act an account of the proceedings in this case, namely these orders and the court’s Reasons for Judgment accompanying same be authorised for publication, via the Independent Children’s Lawyer, to:
(a)The community corrections officer responsible for the father’s probation (or parole as the case may be) or his or her duly authorised delegate;
(b)Any appropriately qualified person conducting any course or engaging in any treatment of, or consultation with, the father as a requirement of his parole;
(c)Any psychiatrist, psychologist, counsellor or therapist consulted by any of the parties with reference to sexual offending involving children (including offences involving child pornography) or which seek to provide an understanding of the nature of such offending.
The Independent Children’s Lawyer
The Independent Children’s Lawyer be discharged 12 months from the date of these orders.
Liberty to Apply
The Independent Children’s Lawyer have liberty to relist this matter on the giving of 5 days notice in writing and, if reasonably practicable, any such further application be heard by Murphy J.
IT IS NOTED that publication of this judgment under the pseudonym Harridge & Harridge is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
FILE NUMBER: BRC1484/2008
| MR AND MRS HARRIDGE (SNR) |
Applicant Paternal Grandparents
And
| MS HARRIDGE |
1st Respondent Mother
And
| MR HARRIDGE |
2nd Respondent Father
REASONS FOR JUDGMENT
In October 2007, the father of A, aged 6 (born May 2004) and N, aged 4 (born October 2005) was convicted of three offences involving child pornography.
He was sentenced to 3½ years jail, suspended after twelve months with an operational period of 4 years. Upon his release, he was placed on 3 years probation, with special conditions. In sentencing the father for the offences, which involved not only possessing child exploitation material but distributing it, the judge referred to the “large number of images” describing some as being “of the most base depravity”.
There were over 200 images found on the husband’s computer tower and some 2,000 images on CD’s in his possession. It was accepted that the husband was not engaged in commercial trading of the images but her Honour said, “You did participate in a network of trading, as in exchanging, of these images and there would be no demand for these images if people like you were not willing to trade in them”, going on to say that the father shared images “with some 100 to 160 people”.
The children have lived with their mother since the parties separated as a result of the father’s arrest for these offences. Obviously enough, the father spent no time with the children when he was in prison between October 2007 and October 2008. Apart from at least one occasion, which will later be addressed, and time in the context of an ordered s 65L process, the father has not spent face to face time with the children for over 2 ½ years.
Parenting proceedings have been live in respect of the children since shortly prior to the husband’s incarceration. Initial orders made in the Federal Magistrates Court on 11 March 2008 provided for the children to live with their mother and for the paternal grandparents to have regular telephone contact and to spend time with the children each fortnight between 10.00 am and 2.00 pm each Saturday.
The orders provide that, after a period of three months, the children stay overnight with the paternal grandparents from 10.00 am Friday until 2.00 pm Saturday, together with periods of “two to three nights” by agreement with the mother during school holiday periods.
During his period of incarceration, the father was initially having telephone contact from jail with the children. In September 2008, Howard FM made an order precluding the father from having “any contact with the children at all, including telephone contact”.
“Telephone contact” with the paternal grandparents was continued but the time spent by them with the children was ordered to occur each fortnight from Friday at 10.00 am to Saturday at 4.00 pm. Orders made some two months later (consequent upon the father’s release from jail) ordered the paternal grandparents’ time to be supervised at a Contact Centre in E “once a fortnight”.
The Federal Magistrate ordered that “the above order remain in place until the paternal grandparents can prove to the mother that the father has relocated from their residence by a letter from father’s Probation Officer”. Once that condition was met, the orders provided for the paternal grandparents “to have fortnightly overnight visits”. The order precluding physical contact between the children and the father was continued but “telephone contact” was permitted once a month.
It is common ground that, from about 18 December 2008, the satisfaction, or “proof”, required by that order was provided such that the unsupervised period of time contemplated by the subsequent provisions of the order came into effect
The matter was transferred to this Court and designated as a “Magellan matter”. On 14 May 2009, I made a number of orders including, relevantly, that the paternal grandparents “refrain from making further notifications to Department of Communities (Child Safety Services) without leave of the Family Court” and that they “refrain from discussing matters in this proceeding with the children” and that they “refrain from taking photographs of the children intended for use in the proceedings or in support of notifications to Department of Communities (Child Safety Services)”.
In November 2009, existing orders for time were altered by reason of events which occurred in early October 2009, which involved the children being brought into contact with the father. This incident will be referred to in greater detail later in these Reasons.
The paternal grandparents’ time with the children was, as a result, ordered to be supervised at the C Contact Centre for two hours per fortnight, provided the father was not present at, before or after the visits, and an injunction also issued against the mother restraining her from bringing the children into contact with the paternal grandparents or the father.
Face to face time between the father and the children was ordered to take place solely within the confines of a s 65L process, with a report issuing from a family consultant consequent upon the supervision envisaged by that order and the Section.
The Proposals of The Parties
At the conclusion of the proceedings before me, the Independent Children’s Lawyer contended for a number of orders. It is, I think, important that I set them out:
1.That the children [A] born […] May 2004 and [N] born […] October 2005 live with the mother.
2.That the mother have sole parental responsibility for the children.
3.That there be no order for the father to have physical time with the children.
4.That the father do all things necessary to complete the sex offender programme or an equivalent programme with an experienced registered psychologist specialising in the diagnosis of sexual offenders and their rehabilitation and obtain a report from the programme or the psychologist, such report to include:-
a) dealing with stress and anxiety without the use of pornography and/or incest fantasies;
b) recognising appropriate adult and child boundaries;
c) developing insight into triggers for accessing pornography or a desire to access pornography or incest fantasies.
5.That upon the successful completion of the programme and the furnishing of a report in Order 4, the father be at liberty to reapply to vary order 3 and review the issue of his time with the children.
6.That the father be at liberty to communicate with the children:-
(i) by telephone weekly with the mother to initiate the call;
(ii) in writing with such letters to be vetted by the mother.
7.That the grandparents have time with the children during the school holidays from 9am Saturday to 5pm Sunday on one occasion per holiday period with such time to be nominated by the grandparents in writing one month before the time, provided:-
(i) both [the paternal grandfather] and [the paternal grandmother] are present for the purpose of the time: and,
(ii) that [the father] not be present at any time during the children’s time with the grandparents.
At the outset of the hearing, the grandparents (who at all times represented themselves) made it clear that they no longer sought orders that the children live with them. Rather, their central proposal was that the children should spend unsupervised time with them “at the mother’s behest”. When pressed as to what this meant in specific times, the grandparents indicated that they sought an order for fortnightly time in accordance with the order made by FM Howard.
I took them to mean, obviously enough, the first of the orders made in that respect by FM Howard, namely that the children spend time with them commencing Friday at 10.00 am until 4.00 pm Saturday. If the orders are to continue to apply when school commences for each of the two children, those days and times will need to be changed, but this was not the subject of any specific proposal by the grandparents.
The grandparents propose that, if the Court considers it appropriate, the time between the children and the father be supervised, and that his time coincide with theirs. In other words, their proposal included not only a proposal for time between the children and the father but for them to be the supervisors of it. If the Court concluded that the father’s time with the children ought not be supervised, then they sought time as indicated, separate from the father.
For his part, the father concedes that an order should be made that the children live with their mother. He also concedes, through his Counsel, that time between he and the children should be supervised.
As I said during the course of the hearing, this might be seen as an admission on his part either that there is an unacceptable risk of harm or that there was otherwise good reason for his time to be supervised. I think it fairer to the father to take him as not having made any such admission but, rather, that he accepts that, in light of all of the circumstances of the case, the Court would regard supervised time as being a “best case scenario” for him.
The father proposes that his time be supervised by his parents, by his current partner, Ms F, or “by an [unnamed and unspecified] independent person”.
The mother ostensibly seeks an order that the paternal grandparents spend time with the children in accordance with the orders made by me on 13 November 2009 (that is, supervised by the C Contact Centre for 2 hours per fortnight, provided that the father is not present at those visits or before or after those visits). Similarly, the mother sought an order that the father’s time with the children be in accordance with those orders. Taken literally, that would mean a continuation indefinitely of an order pursuant to s 65L of the Act, although it seems clear that she did not contend for that.
The mother’s “true position” was, in fact, harder to discern. A report prepared by the Family Consultant, Ms D, described the mother as “an amiable woman who is sensitive to manipulation and domination …” The mother gave to Ms D an account of her position with respect to the father and paternal grandparents very similar to her (as I find, honest and sincere) account in the witness box.
She told Ms D that she favoured the father’s and paternal grandparents’ time with the children being supervised. Ms D quotes her as saying, “My issue is trust, not them [the boys] having a relationship with their family. I feel manipulated by the grandparents”. She is reported to “feel ‘invaded’ and ‘uncomfortable’ just in the presence of the paternal grandmother at an accidental sighting of her at the local shops some weeks prior to this interview”.
Quite apart from any other issues of risk, then, Ms D reports the mother as “requir[ing] the necessity of supervision to provide a buffer to this affect (sic), and facilitating time between the children and the paternal family”.
The mother said in oral evidence that she had problems with trusting people generally. When asked what her specific concerns were in that respect about the paternal grandparents, she said, “At the back of my mind, I don’t trust them … There’s always a chance something will happen … I can’t always completely trust people”.
The mother, though, was clear in her oral evidence that she thought the grandparents loved the grandchildren and would not do anything to hurt them “intentionally”. Her ultimate concerns that there is “always a chance that they will allow that to happen” is, it seems, a reference to the possibility of some form of inappropriate sexual behaviour between the father and the children.
The Central Role of Best Interests in Parenting Orders
The Act reminds the Court more than once (eg ss 60CA; 65DAA) that findings as to best interests are at the heart of the decision and the court’s task is to arrive at orders which best promote the best interests of these particular young children in their particular circumstances.
That findings as to best interests lie at the heart of every parenting decision is reinforced by the Act providing that those findings are the servant of many masters within the Act, including matters that can be seen as central to Part VII.
Indeed, a central component of the Part – the statutory presumption of equal shared parental responsibility – is, ultimately, governed (in part) by an exception based on findings as to best interests.
So, too, the mandatory consideration of specified periods of time can be seen to be subject to an ultimate consideration of best interests (see the coda to each of the sub-sections of s 65DAA).
Ultimate findings about best interests specific to the case before the court rest on a fact-finding or value-finding exercise performed within a mandatory statutory framework. In particular, the Act prescribes the means by which best interests are to be determined; the heading to s 60CC is “How a court determines what is in a child’s best interests”.
Clearly enough, that section, together with complementary provisions of the Act, including the Part’s Objects and Principles, are each central to the court’s role and the orders made by it.
It is, in my view, important to bear in mind that the Act’s mandatory considerations (s 60CC) are, like their predecessor (s 68F(2)), not objective standards (see, eg Secretary, Department of Health and Community Services v JWB & SMB (1992) 175 CLR 218 at 270-2).
The s 60CC considerations are signposts or touchstones within which the broad enquiry as to best interests must be conducted. That the enquiry remains a broad one is evident from the section itself (s 60CC(3)(m)).
Furthermore, ascertaining best interests by reference to those mandatory signposts, and that broad enquiry, must embrace the fact that: “[i]t is a mistake to think that there is always only one right answer to the question of what the best interests of a child require … [b]est interests are values, not facts” (CDJ & VAJ (1998) 197 CLR 172 at 219).
Best Interests: Issues, Considerations and Basic Findings
The interplay of the Act’s two Primary considerations is central to a determination of orders which best meet A and N’s best interests. But, those two primary considerations, whilst having primary importance, must also be seen in the context of all other Considerations enumerated in s 60CC relevant to the particular circumstances of these two children. (See, in that respect, eg, Warnick & Thackray JJ in Marsden and Winch (No. 3) [2007] FamCA 1364 at par 77).
The children are as yet too young to express views in the sense of expressing wishes for particular outcomes, yet their overt spontaneous enthusiasm, witnessed by the family consultant during the court-ordered s 65L supervision conducted by her says much about their desires for a relationship with their father and their grandparents. Indeed, in paragraph 41 of her report, Ms D says: “In some ways, it was unnecessary for them to articulate their views and wishes because their [enthusiastic] behaviour spoke for itself”.
The children have already experienced significant changes in their young lives: their parents separated suddenly and without warning and, a very short time thereafter, their face to face time with their father was removed by his incarceration. Their face to face time with him since has been virtually non-existent.
Similarly, court orders have seen changes – considered by me to be significant changes given the children’s ages – in the amount of time spent with their grandparents. The fortnightly overnight time they were spending with the grandparents for about 12 months, reduced in November last year to two hours a fortnight supervised at a contact centre.
If the Independent Children’s Lawyer’s proposals are adopted, there would be further changes for the children in the amount of time and the nature of their relationships with their grandparents (which such changes I assess as significant given their ages and stages of development).
I assess the mother as having the willingness and capacity to facilitate any time ordered to occur between the children and the grandparents (and, indeed, the children and the father). Indeed, an issue in that respect, emanating essentially from the 2 October incident earlier mentioned, is whether the mother would be too willing - in the sense of failing to act protectively where, as the ICL submits, there is a risk.
There seems little doubt that the children have – or would seek to have – a close and loving relationship with each of their parents and with their paternal grandparents.
The capacity of the father to parent and to exercise the responsibilities of parenthood is inextricably interwoven with the issue of what risk he is assessed as presenting to the children. So, too, in respect of the grandparents; the issue being their perception of any risk presented by the father and their reactions to it.
The mother’s capacity to parent and her exercise of the responsibilities of parenthood is influenced by her vulnerability in general and, in particular, to the potential to be influenced by, or be overborne by, the paternal grandparents. I have no doubt that she is otherwise motivated to act appropriately and lovingly in the children’s best interests.
I also have no doubt that the grandparents, too, are, in their own way, motivated to act appropriately and lovingly toward the children. But, the manner in which that manifests itself in their dealings with each of the parents is a significant issue in these proceedings.
Primary Considerations
The undefined expression “meaningful relationship” has been considered in a number of recent decisions. (See McCall & Clark (2009) FLC 93-405, but noting also the earlier comments of Kay J in Godfrey v Sanders [2007] FamCA 102 at par 36).
There is no doubt that the children in this case want, and need, a meaningful relationship with their father. There is no doubt that the same is true of a relationship with the paternal grandparents who, on any view, have had a central role in their lives (the mother would say too great a role). The family consultant, Ms D said in oral evidence:
I’m aware, like I said in my report, that there is benefit with these children having a relationship with their father and their grandparents and I spoke to the grandparents about that and from my own observations, and as indicative in [Ms B’s] report, it is very clear that these children enjoy spending time with these people and they get great benefit and enjoyment from that and it’s important for these children to be able to reconcile all their family members’ faults and strengths because they are going to learn from those adults’ faults and they’re going to be able to build upon those strengths and incorporate them into their own identity and who they are.
I find that the children would clearly benefit from the promotion and development of a meaningful relationship with their father and with their paternal grandparents.
In that circumstance, the Objects and Principles underlying Part VII of the Act can also be seen to have particular resonance: children have a right to know and be cared for by both their parents and to spend time on a regular basis with both parents and others significant to their care, welfare and development. In making parenting orders under Part VII the best interests of the children are to be met by, among other things, ensuring they have the benefit of both of their parents having a “meaningful involvement” in their lives “to the maximum extent” consistent with their best interests.
In this case, however, as in so many cases that proceed to final hearing in this court, the Primary Consideration of the children having a meaningful relationship with both parents has the potential to collide directly with the other Primary Consideration, which predominates the need to protect children from specified harm.
In my judgment that potential collision poses the central dilemma for this court in arriving at orders that best meet these very young children’s best interests: does the potential for harm – or any “unacceptable risk” of harm – justify impinging upon the present, and potential, meaningful relationship otherwise identified and, if so, how and to what extent?
The Effect of the Orders Sought?
The orders sought by the Independent Children’s Lawyer contemplate no face to face time between the children and their father until the father has completed a course of the type specified in the orders and until the father brings further proceedings in this court. Thus, until both can happen, a very significant restriction on the current and potential relationship between the father and the children is contemplated.
Further, implicit in the orders sought, and central to the Independent Children’s Lawyer’s submissions, is an assertion that, if supervised time is to be ordered, the grandparents should not be the supervisors; crudely put, it is submitted that they cannot be trusted in that position. As has been explained, the mother’s position is understood to be to a similar effect.
When raised by me, each of the parties accepted that I could take into account as a matter of “common knowledge”, based on the experience of the court in matters of this type (See s 144 Evidence Act 1995 (Cth)) that, because the father is a convicted sex offender, the prevailing rules or practices of contact centres would preclude the father exercising time within them. No party sought to argue to the contrary (or adduce evidence to the contrary).
Thus, a significant matter relevant to a consideration of possible orders which might best reflect the best interests of these children is that an order for time by the father supervised at a contact centre is, for all practical purposes, an order for there to be no time.
There was “evidence” (more accurately an assertion in argument) of the possibility of paid services providing various asserted services, but there was no evidence of any specific service, much less their requirements or availability.
In a similar vein, evidence from Ms D raised the possibility of “graduating time” between the children and the grandparents, conditioned upon them doing “a course”. The nature of the course was postulated as being of a type that would assist the grandparents in understanding the nature of the risk posed by offending of the type perpetrated by their son and the nature and impact of sexual abuse of children of that type. No specific course was identified by Ms D (or anyone else). Thus, there is evidence about the desirability of such a course but there is no evidence of the existence of any such specific course, or, as a result, any requirements, conditions or availability that might attach.
In any event, the Independent Children’s Lawyer postulates no such condition attaching to any ordered time between the children and their grandparents nor do they postulate supervised time at a contact centre or anywhere else. The self-represented mother proposes their time be at a contact centre.
In summary, then, if there is no viable supervision of the father’s time other than the grandparents, and if the grandparents ought not be supervisors, the net effect will be that there will be no face to face time between these as yet very young children and their father until the specified conditions are met. There is no evidence about how long that might take in total, but the conditions are not only dependant upon the identification, and availability of, a suitable course, but also dependant upon the institution and prosecution of further proceedings.
It might be thought the likelihood of resolution of the latter by trial and subsequent order in less than 18 months from filing would be relatively remote. While precise calculation is not possible, it is, in my view possible to conclude with some accuracy that, inherent in the Independent Children’s Lawyer’s proposal is a curtailment of face to face time between the children and their father for in the region of two years (assuming, of course, that the first condition is satisfactorily met and that, subsequently, an order was made to effect same). The net effect is that the children will, by then, have spent negligible time with their father for the best part of five years.
Further to that, if the submissions of the Independent Children’s Lawyer are accepted, the only time the children will spend with their father or grandparents from now until the father both undertakes a course and prosecutes further proceedings, will be 4 nights each year with the grandparents, separated by periods of about 3 months or so in each case.
I do not consider that either could be described as the children having a “meaningful relationship” with either their father or their grandparents. The issue is whether an identified unacceptable risk of harm renders that outcome as being in the children’s best interests.
Protection From Harm and Unacceptable Risk
The Nature of Unacceptable Risk
In cases where allegations of abusive behaviour involving children, or potentially involving children, are made, an assessment of any risks associated with the parenting orders contended for, and, ultimately, those which might attend orders made by the court, must play a central role. “Unacceptable risk” is the measure (sometimes said to be a test) which, in this jurisdiction, has been used to assess parenting orders might be impacted by potential harm to a child. (See M v M (1988) 166 CLR 69).
It is important to record part of what the High Court said in M v M (at 76):
“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…”
Further, in the passage just quoted, the High Court (prior to the passing of the Family Law Reform Act 1995 (Cth)) pointed out that:-
“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.”
That is, it seems to me, all the more true now consequent upon the passing of the Reform Act which introduced significant changes to Part VII of the Family Law Act. Now, just as when M v M was decided, an allegation of potential risk of harm ought not divert the court from the central task of assessing the best interests of these two young children. The identification of the need to protect children from specified harm as a Primary Consideration does not, in my view, alter that. That the inquiry about harm in the current legislative context occurs in the context of a broad assessment with an ultimate focus on best interests is clear from a number of sections within Part VII, for example, s 65CA and s 60CC(3)(m).
Unacceptable Risk: Nature, Extent and Relationship with Orders
In McCoy v Wessex (2007) 38 Fam LR 513, Brown J refers to a number of decisions where the place of “unacceptable risk” is considered. In particular, her Honour refers to the decision of the Full Court in N and S and the Separate Representative (1996) FLC 92-655. There, Fogarty J said (at 82,713-4:
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.
In her Honour’s reasons in McCoy, Brown J also refers to the judgment of Warnick J in Napier v Hepburn (2006) 36 Fam LR 395, (subsequently cited with approval by the Full Court in Potter v Potter (2007) 37 Fam LR 208 and Partington v Cade (No 2) (2010) 42 Fam LR 401) where his Honour their says:
[114] I also wish to add some comment on what I perceive as a further goal of fulsome discussion by a trial Judge of the component aspects that may, in any given case, lead to a conclusion of “unacceptable risk” of harm to a child. That goal is to be provide a platform, for any future consideration of the family circumstances. Once a finding of unacceptable risk is made, imperfect though the process that leads to that result may be, the finding can come down between parent and child like an iron gate, that no subsequent efforts can raise. At least a close examination of the steps leading to a finding of “unacceptable risk” can eliminate paths by which a family (or court making decisions for a family) might subsequently explore options for change”.
The reference by Warnick J to the process leading to the result is, in my respectful view, extremely important. I sought to emphasise it, albeit in slightly different terms, in the course of the current proceedings. Specifically, I consider it extremely important in a parenting case such as this to identify the nature of the risk or risks said to be present and how, and the extent to which, the identified risk or risks are said to impact on orders reflecting best interests.
Frequently, (I would respectfully venture, too frequently) “risk” is referred to as an all-embracing term, a “general” finding of which can (purportedly) be seen to have some form of “ipso facto consequences” for the orders made. Yet, “risk” is, without more, but a convenient description; orders must, surely, address its constituent components which must, axiomatically, vary according to the circumstances of each case.
In that respect, it is both interesting and instructive to refer to what has been said about this issue first by the Honourable John Fogarty AM, and, secondly, by an English author, (the latter qualified as both a psychiatrist and a barrister.)
The latter said:
Risk assessment in any situation involves, in essence, the asking of the following questions:
(1)What harmful outcome is potentially present in this situation?
(2)What is the probability of this outcome coming about?
(3)What risks are probable in this situation in the short, medium and long term?
(4)What are the factors that could increase or decrease the risk that is probable?
(5)What measures are available whose deployment could mitigate the risks that are probable?
(B. Mahendra, ‘Psychiatric Risk Assessment in Family and Child Law’ (2008) 38 Family Law 569).
Mr Fogarty, writing in the Australian Journal of Family Law said this (20 AJFL 249 at 254-5):
…the reality is that all courts deal with issues of “risk” and degrees of risk (however described) in various situations and that concept is increasingly used in legislation.
Risk is difficult to define in a way which is not ultimately circular. But it is an inevitable part of life at all its levels. It is inherently risky to breathe, eat, drink, walk, drive, work, invest and play. The world is full of different risks and consequences and everyone is prone to dangers. We confront varying levels of risk everyday. People frequently face potentially dangerous situations; not many live at home in complete isolation to avoid getting in harms way. Most people try to avoid what they perceive to be risk; some willingly take on high risk activities.
Risk involves two component; the degree of “likelihood” of the happening of an event, and the possible consequences (good or bad) if it does [cases and citations omitted]. Individuals in their assessment of some risks may focus more on one than the other of these components.
But at some point it usually becomes necessary for that person to make a judgment of the risk and whether it can/should be taken. Where the risk relates to a third person to whom one owes a responsibility, it is likely in the nature of things that the estimate will be conservative.
Risks are relative and usually involve trade-offs. Crossing the road with oncoming traffic to catch the last connection to the airport involves the risk of being hit by a car or the risk of missing the plane. Very much a balancing exercise of facts, experience and intuition, but essentially which risk carries the greater detriment (usually the car).
Then there is the common experience of a mother watching her child cross a road to go to school. The risk is seen as greater (although it may not be) because the consequences may be death or injury to the child and because the responsibilities of the mother will be seen by her as greater than for herself or another adult….
At times the courts and the legislature have attempted to give an indication of the content or quality of the risk – otherwise “risk” may mean any risk, however small or unlikely. Hence the use of adjectives such as “serious”, “grave”, “real”, “appreciable” and “unacceptable”. [paragraphing added to the original for ease of reference]
I respectfully agree, as I also do with Mr Fogarty’s statement (which also has echoes in the English author’s statement earlier quoted) that:
“… unacceptable risk in the High Court’s formulation [in M v M (1988) 166 CLR 69] requires two separate steps. Is there a risk, and is it unacceptable? The concentration by the High Court is upon both the nature and the degree of risk in the particular case. Its formulation is all about balance. In some cases a risk is “acceptable” when balanced against other factors and other orders. The object of safeguards is to convert an unacceptable situation to an acceptable one where that is feasible and is of “benefit to the child”. It is, as I suggested earlier, calibrated to its use in individual cases. It is unrelated to the exoneration or otherwise of the alleged abuser; it is all about the bests interests of the child and protection from risk”. (at 261)
In my view, each of the comments just quoted from each of those authors have direct resonance for the determination of the issues, and the ultimate framing of orders, in this case.
At paragraph 46 of her report, Ms D says of an occasion supervised by her pursuant to the Court’s s 65L order:-
[N] had to attend the toilet at one point. He did this independent of any assistance. However, what this and the whole session highlighted is the need for two supervisors to be present at all times because one will need to be available for one child whilst the other attends the needs of the other child. It also highlighted the scope of where harm could possibly occur because if there had only been one supervisor, which would have been the case if I was not present, one child could be left alone with [the father] whilst Ms [F] was entertaining the other. This would have all occurred unbeknownst to Ms [F] as she was fully engaged with [A]. [emphasis added]
This paragraph highlights the point just made. What “harm” (or risk?) is there being referred to? It seems to be plainly implicit that, in the situation postulated, the magnitude of possible harm, and the likelihood of occurrence, are both (or, perhaps, each) so great that a visit to the toilet by one child (for, one assumes, a period of minutes) is said to point to the potential for “harm” to the other child.
When the circumstances are fleshed out a little more, what is envisaged is, it seems, a risk of harm so great that it is postulated as potentially occurring:
· in the space of a few minutes;
· while a sibling and another adult are each in the vicinity (albeit not present);
· while another adult charged with the responsibility of supervising time is in the vicinity; and
· when the father is well aware that the whole reason for supervision by another adult in the first place is that concerns are held not only by the mother, but by the court that he might engage in inappropriate behaviour.
As Mr Fogarty points out, authority binding upon me instructs that the concentration should be “upon the nature and the degree of the risk in the particular case”. An initial question then, is: whatever abhorrence and repugnance might attach to the father’s past criminal conduct, does the evidence suggest that the risk is of a nature or magnitude suggested by the above analysis or scenarios akin to it?
In the context of the making of parenting orders it is necessary to go on to ask: can a risk of the type and magnitude assessed, be “balanced” and be made “acceptable”? Mr Fogarty’s words earlier quoted bear repetition:
… in some cases a risk is “acceptable” when balanced against other factors and other orders. The object of safeguards is to convert an unacceptable situation to an acceptable one where that is feasible and of “benefit to a child” … It is unrelated to the exoneration or otherwise of the alleged abuser; it is all about the best interests of the child and protection from risk.
Unacceptable Risk: The Father
At the outset of the proceedings, the father effectively accepted a finding that would (I should make clear) have been made, in any event, by this court.
His criminal behaviour is serious and abusive of children. It extended beyond (criminal and perverse) curiosity and involved the distribution of grotesque images abusive of children. That criminal behaviour combines with the father’s personality vulnerabilities and his erstwhile inability (as I find) to access and complete appropriate treatment or courses.
Ms B said in an earlier report:
12.2.7 There are also other questions raised in respect of the appropriateness or otherwise of [the father] spending time – unsupervised or supervised – with his sons. These issues relate to his personality in general, his capacity to model appropriate behaviour for his sons, his capacity to support and encourage their relationships with their primary attachment figure, their mother, and his reliability in complying with court orders ….
Expert evidence which can be seen to have at its core an assessment of the nature and magnitude of the risk posed by the father was provided by Mr L. His assessment involved both interview and psychological testing said to produce results indicative of, among other things, risk. Mr L’s evidence (noting, in particular, paragraph 103 of his report upon which counsel for the ICL placed considerable reliance) is that the father is at “low risk” of committing a contact sexual offence and at a “moderate risk” of recidivism. (Mr L refers in his report to “committing some form of future offence”, but said in oral evidence that he was there speaking of “non-contact” offences of a type similar to that of which the father was convicted.)
The oral evidence of Mr L was to the effect that “the jury is very much out” on any relationship between those who commit “non-contact offences” (such as viewing and distributing pornography) and any likelihood of committing contact sexual offences. One study cited by Mr L, involving men (like the father) with no pre-morbid criminal history, indicated that one in two hundred had gone on to commit contact sexual offences.
Mr L was of the view that attachment between parent and child was a “preventative mechanism” against the perpetration of sexual offences upon a person’s own children. In particular, said Mr L, early attachment can “inoculate” against that specific risk. However, it was necessary for the attachment to exist in the first place and for the person concerned to be emotionally available to the children and receptive to the emotional needs of the children.
Concerns about the father’s emotional state have earlier been alluded to, but it is also important to point out that Ms D assessed the father as being “appropriate with the children throughout all the sessions” and that:
… he clearly had a good knowledge of what interests children of [A] and [N’s] age as he was able to engage them with his knowledge of current children’s movies and other cartoon characters the children were interested in” …
… the children appeared comfortable in their father’s presence and were often seen giving him hugs and kisses, particularly at arrival and departure …they would do this in a spontaneous and natural manner.
The attachment between the father and the children has obviously been attenuated by reason of his enforced absence from their lives. They were young when that occurred. But, the evidence appears to me to suggest that there has been, and is, a close attachment between the children and their father and that there are solid building blocks in place for the attachment between the children and their father to grow and develop. Having said that, I remain very much aware of the evidence with respect to the father’s psychological issues and the impact this may have on his ongoing capacities to parent and upon his emotional availability for the children. Mr L points out, for example, that “[h]e reportedly continues to use [adult] pornography as a form of emotional coping, is socially isolated and has limited intimacy skill”.
It seems to me that the matters just referred to are significant in respect of assessing potential risk or potential “harm” presented by time alone between the father and the children.
I consider the evidence falls a long way short of that which would be required to make a finding that the father would, or might, commit a contact sexual offence (of any type) against his own children.
But, all of the evidence just outlined nevertheless combines to produce a picture of a man - and a father - who is psychologically very compromised, and very compromised in a way that has impaired his normal psycho-sexual development. Further, and very importantly in my view, those same issues currently impair his understanding of the extent to which his psycho-sexual development is compromised.
I agree with the expert evidence before me that the father needs significant expert assistance in arriving at an understanding of those matters.
The father gave evidence that, due to an aspect of his psychological condition/s, he received permission from the officer supervising his post-prison community based order to cease attending a course, organised as a condition of his post-prison order, which involved group therapy. The father’s evidence was that an alternative (individual) course run through, or connected with, Bond University had been approved. Despite this assertion, the evidence about this was, ultimately, confused and inconclusive. It does, though, seem clear that the father had not, by the date of trial, completed a course designed to address his offending behaviours.
In attempting to arrive at a clear picture of the nature and magnitude of the risk of harm posed by the father, to analyse its constituent parts and consider how any such risk might be balanced by other factors, I consider:
·The harmful outcome potentially present is the risk of exposure of the children to material of a sexual kind not suitable for children of their age and maturity.
·The risk exists because, firstly, the distribution of depraved images depicting children by a man who is himself a father, indicates a lack of understanding of, and an abdication of, the responsibilities of parenthood;
·There is, evident from that fact and also from the reports of Ms B, Mr L and Ms D, an inability in the father to appreciate, or appreciate fully, what is, and what is not, appropriate in accordance with (even broad) societal norms. Each and both can be seen, at least in part, to emanate from the father’s compromised psychological makeup (including his vulnerability to depression);
·His psychological makeup and his vulnerability to depression impairs his capacity for insight into both the appropriateness of material of a sexual nature and the firm boundaries necessary to be put into place to protect children until such time as their knowledge, maturity and experience allow them to decide for themselves what is appropriate and inappropriate;
·The probability of the occurrence of the outcome at the heart of the risk is moderate and, where the best interests of young children is the central issue, at an unacceptable level;
·The probability of the occurrence of a “contact sexual offence” is low and, in my view, likely to be lower in respect of his own children because I accept he has an established (albeit attenuated) attachment to them;
·The identified risk to the children is probable in the short and medium term without the father acquiring a greater degree of insight and psychological maturity and strengths;
·The factors that are likely to maintain or increase the risk are the maintenance of his social isolation, his continued use of (adult) pornography as a form of emotional release; the immaturity of his current partner (as I will later explain) and a failure to yet fully avail himself of specialist therapeutic intervention with a specific focus upon sexual deviance in general, and child exploitation and pornography specifically;
·Conversely, the measures available to mitigate the risk are a genuine commitment to the process of therapeutic intervention just referred to and the direct supervision of his time with the children pending satisfaction about the long-term efficacy of such a process or processes of therapy or other intervention.
It is in this case possible to fashion orders which would preclude any risk of any harm of the type just discussed. That could be achieved by orders which prevent the children having any contact of any type with the father or his parents. Such a result might commend itself where there was no existing meaningful relationship between the children and those adults, and no real prospect of the development of same.
Here, the opposite is the case. There is evidence which satisfies me that, by reference to the Act’s Objects, Principles and Considerations, the children would benefit significantly from a continued involvement of their paternal grandparents in their lives and the reintroduction of, and development of, a face to face relationship with their father.
That being so, the issue becomes: how do the findings about risk (in combination with any other findings relevant to the Act’s Objects, Principles and Considerations) justify an interference by court order with an unrestricted apportionment of co-parenting duties and time?
In the case of the father, I consider that the evidence does justify such interference. In particular, it seems to me that his time with the children should be supervised pending satisfaction that the psychological issues present, and particularly those apparently central to insight into his offending behaviour, have been satisfactorily addressed.
It is equally plain that time between the children and their paternal grandparents does not need to be supervised because no risk/s of the types just referred to attend time between them and the children. The mother does not attribute to the grandparents any untoward intent toward the children themselves, nor does she suggest that they themselves would, when with the father, behave toward the children in anything other than an appropriate and loving way.
Whilst, as earlier referred to, the mother has “in the back of her mind” issues of trust with respect to the grandparents, that is plainly a reference to concerns about something improperly sexual occurring at the hands of the father, as distinct from an assertion that the children are at risk from any form of sexual harm directly from their grandparents.
Thus, insofar as any time might be ordered between the children and the grandparents, separate from the father, the potential for sexual harm, in any form, is not a consideration.
There are, though, in my judgment, factors which attend curtailment of time in the sense of the quantity and regularity of time. Whatever other orders might be made, it is clear that the mother will be the parent providing the children’s primary care. Given her personality characteristics and frailties earlier referred to, but very much bearing in mind the children’s close and primary attachment to her, she should be allowed to provide that primary care, attended by as much stability and predictability as possible.
Importantly, that should also be permitted to occur without the mother feeling pressured or overly scrutinised or “judged” by the paternal grandparents. The grandparents’ (understandable) desire to see their grandchildren with significant frequency ought, in the overall best interests of the children, give way to the consideration just mentioned. Yet, they cannot be doubted as having a close and loving relationship with the children which is reciprocated. The children should see them with regularity. I am not persuaded that the Independent Children’s Lawyer’s, or mother’s, proposal contemplates sufficient regularity, consistent with the children’s best interests.
I am also convinced that the children need to see and develop a regular relationship with their father, albeit that this needs to be supervised as earlier found.
It will also be clear, I think, from all that I have said, that I consider the Independent Children’s Lawyer’s requirement for the father to undertake a course, of the type specified by them, is in the best interests of the children. I am, though, not persuaded that making orders, the practical effect of which is highly likely to be that there will be no time between the children and their father in the meantime, is in their bests interests.
That is all the more so, when the period of any such interregnum cannot be predicted, but may be significant – at least when measured within the minds of young children. Of course, any such interregnum is exacerbated by the fact that these children have not spent any amount of time with their father for a considerable period, which, again, measured by the minds of young children, can be seen as being very significant.
Neither the father nor any other party suggests that supervision of the father’s time by a contact centre is viable or available. Neither the father nor any other party, suggests that commercial supervision is viable or available.
The father suggests his current partner is a suitable supervisor. I reject that suggestion.
I assess the father’s partner as being a highly dependent and very immature young woman. I gained that impression of her in the witness box and Ms D’s report is, in my view, redolent of each. It is to be noted that Ms F has foregone primary caring responsibility for her children J (aged 4) and T (aged 20 months), to maintain a relationship with the father. She indicated with Ms D that this was a decision that she would most likely have made irrespective of this relationship “because I was stressed and not coping with them”.
I am by no means persuaded that she would be a suitable supervisor, and all the more so when her current intimate relationship with the father is added to that picture. I assess her as having a very limited capacity to understand the true ramifications of the father’s previous offending behaviour and the underlying personality and psychological issues from which it springs.
Ms D reports:
25. The paternal grandparents were able to articulate a good understanding of the responsibilities required of a supervisor. They stressed that the key function of the supervisor is to keep an eye on the children as their “safety is paramount.” They were also keen to stress that whilst it provided a level of protection for the children it also protected [the father] from further allegations. It is this sentiment that [the mother] was wary of in her interview, “the grandmother has gone past the point of protecting [the father] with respect to his offences…still think he has a halo [words to that effect].” The paternal grandparents detailed the measures they would take to supervise the children’s time with their father accordingly.
26. This was unlike Ms [F] who was unable to identify the responsibilities of a supervisor, “don’t know. I would have to ask [the father’s] solicitor.” Ms [F] was advised of the obligations of a supervisor and asked how she would contain the children’s behaviour (refer to observations of children with their father and Ms [F].) and simultaneously ensure that she was capable of monitoring [the father’s] presence at all times. Ms [F] was not certain how she would do this. This did not give me great confidence in her capacity to appropriately supervise.
The grandparents present as the only viable supervisors. If they are to be considered, any risk to the children thereby presented (asserted to exist by the Independent Children’s Lawyer and the mother) needs, itself, to be analysed.
The analysis of any such risk can be seen to comprise two parts. First, the nature and extent of the risk presented by the father (that harmful outcomes are potentially present; their probability; and their probability in the mooted situation in the short, medium and long term). Secondly, it is necessary to consider what findings can be made about the grandparents in respect of those perceived risks of that nature and probability; are there present factors in their supervision which increase or decrease the risk or leave it unaffected? Does their presence mitigate the perceived risks, and might orders be fashioned by the court involving their supervision which mitigate or ameliorate any such risks?
Unacceptable Risk – Supervision by the Grandparents
As earlier referred to, the central submission of the Independent Children’s Lawyer (effectively supported by the mother) is that the grandparents cannot be trusted as supervisors of time between the children and the father. The finding sought is, I think, that they would not approach the task with sufficient diligence so as to give the court comfort that unacceptable risks of harm posed by the father are eliminated (or, at least, mitigated) by their presence.
Inferentially, for example, it is suggested that they may not deem it necessary, if left, as it were, to their own devices, to be present for the whole of the time when the children were with the father or, perhaps, to ensure that all activities were supervised appropriately at all times.
As I understood the argument, such a finding would be based on three main aspects of the evidence. First, relying significantly upon evidence from Ms D, it is contended that the grandparents have little real insight into the broader ramifications of theirs son’s offending behaviour or those aspects of his psycho-sexual makeup said to underpin it. Secondly, it is said that an incident occurring on 2 October last year is highly indicative of a cavalier attitude toward court orders or indicative of an attitude that might be summed up by saying that they would obey court orders except when they concluded, for what they regarded as good reasons, that the orders might not be obeyed. Thirdly, and in further support of that, it is contended that the court would find that there have been more occasions than (the agreed) occasion on 2 October when the children have been brought into contact with the father in the presence of the grandparents.
Those findings are said to combine to produce a finding that the grandparent’s supervision will not eliminate (or ameliorate) the risk posed by the father and, thus, an order for supervision by them itself involves an unacceptable risk to the children.
(i) Grandparent’s Appreciation of the Behaviour
Ms D is concerned that the grandparent’s actions, and deep-seated feelings, might not match their asserted repugnance toward the conduct of which their son was convicted.
The concern, as I understand it, is that, while, as might be expected, the grandparents express repugnance and disapproval of the actual offences, they have little insight into what the commission of these offences (including the nature and extent of the conduct involved) has to say about the psycho-sexual issues for the person who committed them.
That conclusion, though, is not reached without an acknowledgement that a focus on the children’s best interests involves a balance between managing perceived risk against accepted benefit as Ms D’s oral evidence demonstrates:
MS [D]: … it’s a balance that I honestly - when I was writing this report - struggled with myself. I’m aware, like I said in my report, that there is benefit with these children having a relationship with their father and their grandparents and I spoke to the grandparents about that and from my own observations, and as indicat[ed] in [Ms B’s] report, it is very clear that these children enjoy spending time with these people and they get great benefit and enjoyment from that and it’s important for these children to be able to reconcile all their family members’ faults and strengths because they are going to learn from those adults’ faults and they’re going to be able to build upon those strengths and incorporate them into their own identity and who they are.
My impression of the grandparents (noting, in that respect, that their self-representation allowed greater opportunity for direct observation) is that there is about them a sense of the self-righteous and self-satisfied. My impression is that they consider that they know what is best for the children and that the views of others (and the mother in particular) will be accommodated only if those views accord with their perceptions and precepts.
How those conclusions might point to an assessment of risk is, though, another matter and one to which I will return below.
(ii) The 2 October Incident
There is no doubt that, contrary to court order, the children were brought into contact with the father on 2 October 2002. The father’s presence at his parents’ place at the time was, on all the evidence, coincidental. It must also immediately be emphasised that the court order referred to was designed specifically to prevent the father and the children having face to face contact.
The Independent Children’s Lawyer attaches significant importance to this event. Counsel submitted:
… whatever the parties may or may not have thought …a court order was in place, the safety of these children is the paramount consideration, which is stating the obvious, but when one couples that with Mr [L’s] evidence at paragraph 103 of his report, from the ICL’s point of view, any suggestion that there has been any breach of any court order must be of great concern to the ICL and with respect to the court.
Plainly enough, court orders are made to be complied with. Disobedience of any court order is a significant matter. Yet, in terms of assessing risk (and, ultimately, best interests) other considerations might also be relevant. So it is here.
First, it is common ground that the breach occurred as a result of actions effectively instigated by the mother. I make it plain that I find the mother to be a vulnerable person who, I accept, has felt overborne by the grandparents and grandmother in particular (whether that was, in fact, the intention of the grandparents or not). I accept that her vulnerabilities and lack of assertiveness can be seen to play a part in her actions generally and in respect of 2 October specifically. This is how the mother explained the 2 October incident in re-examination:
Well I had a function at the Early Years Centre and I had - um I had arranged to ring [the paternal grandmother] around about lunch time and I had rung her several times between 12 and 1 and I had got her by 1 o’clock and um she had come down to pick me up – well on the phone call she had said to me that [the father] was at the home and in my mind I was thinking that I, oh, ok I probably need to take these children home but at this point I was feeling upset and emotional so when I get upset and emotional I normally just go with the flow and worry about the consequences later on but then [the paternal grandmother] had come down and picked me up and we had gone to the bank because I needed to do some banking and then we went back to her place.
The passage (cited verbatim) is, in my view, itself indicative of the vulnerability to which reference has been made. It is also, in my view, indicative of how, whilst the relationship between the mother and the grandparents may have been marked by (as the mother sees it) overbearing behaviour, it is also marked by a form of dependence, historically, by the mother upon the grandmother. That is asserted by the grandparents and I accept it.
Yet, I also assess the mother as loving and caring toward her children and a mother who would not consciously place the children at risk. This mother, with those characteristics, assessed for herself that no particular risk existed in the behaviour to which she herself exposed the children.
Further, as I said during the course of argument, I consider that the evidence in respect of the 2 October incident which rang most true for me was that of the grandfather. He said, in effect, “yes there was a court order, but the mother has instigated contact, knowing I’m there and that the father is there and mum brings the children there anyway”. He then goes on to say, in effect “how could the opportunity for the children to see their father who they love and enjoy be resisted in those circumstances”.
The answer, of course, as a matter of principle, is “because there was a court order telling you to resist”. A conscious decision could have been made (by the father and his parents) to secure the father’s removal from the house and that plainly should have been done and the order complied with. Again, though, in assessing the second and third issues outlined above, the circumstances in which the incident occurred are, to my mind, highly relevant.
(iii) Other Contact between the Father and the Children?
The Independent Children’s Lawyer submits that I should infer that other, unadmitted, incidents have seen the father come into contact with the children contrary to the court’s order. The finding is said to arise from two primary evidentiary sources.
First is a report, dated July 2009 from a psychologist, Ms Y, who, it should be noted, did not speak to the father, or see the father with the children. She reports:
When asked whether he sees his father, [A, then aged 5] was quite reluctant to answer, and he looked frightened and pale. He stated that his grandmother had told him not to tell anyone that he sees his father, especially his mother. He also stated the grandfather didn’t tell him not to tell anyone. He reported that he went to his father’s house with his grandmother.
Ms Y was not cross-examined.
As the mother says in her affidavit, Ms Y is a psychologist located by her “to see [A] in relation to his behaviour on his return from visitation with the paternal grandparents together with the issue of [the father’s brother] interfering with him”. It is clear that included among the information given to Ms Y was information from the mother about her concerns about whether the children had seen their father.
Whilst I consider the mother to have been an essentially honest and sincere witness, I was by no means satisfied about the clarity of her account; she gave her answers in a manner that was often difficult to follow in a coherent manner. In that sense, I consider her an unreliable reporter. Further, any such picture presented by the mother is, in my view, likely to be significantly clouded by her own perceptions and concerns about the grandparents and the dependant relationship she has had with them. Her affidavit filed 8 March 2010 (which, consistent with an earlier direction by me, includes material from earlier affidavits) is pregnant with those concerns and with criticisms of the grandparents.
In addition, what is plain from the mother’s affidavit is that the children, and A in particular, were subjected to significant questioning about what did, and didn’t, happen when with their grandparents. The specific issue of the children seeing their father was (on the mother’s account) a specific topic of conversation. The affidavit includes this account of a conversation with A (when, it might be noted, he was not yet 5) which, it seems, was the first account referring to the father and a park:
86.On 28 April 2009 I observed the children playing and the children were pretending that they were in the park. [A] was talking about his pretend Dad and he said that it was a secret. At the time I asked [A] did you see your pretend Daddy at the park and in response he replied: “Yes I did”. I did not give this incident any further consideration as I believed that the children were simply playing a game and using their imagination. Later that night I spoke with [A] and told him that keeping secrets may not be very good for him and that there was no need for him to keep secrets. Approximately half an hour later, [A] came to me and he told me that he had a secret. [A] told me that the secret was [that] “he had seen his Daddy”. [Emphasis added in each case].
It seems to me that matters such as those just described are very important contextual elements when considering the veracity or reliability of later statements made by a young child about precisely those sorts of issues. Those contextual matters are, in my view, no less important in respect of later statements made to a professional, particularly emanating from a child that young. No such contextual matters are referred to as attending any aspect of the opinions expressed by Ms Y in her report, including any opinion which (implicitly) gives veracity to the contents of A’s statements to her.
Those contextual matters become all the more important when account is taken of the fact that Ms Y herself indicates that A presented as “a developmentally challenged five-year-old child who is presently in a very conflicted position, due to the ongoing dispute initiated by his paternal grandparents”. Ms Y reports A’s teacher asking that he be assessed by, among others, “a speech therapist and a paediatrician”. Indeed, subsequent to reporting what A had said to her about alleged contact with his father quoted above, Ms Y goes on to say:
6.1.5It was difficult to ascertain the certainty of his answers, as he said initially that he didn’t see his father very often, and then he said that he sees him every fortnight, and that he and his brother [N] see their father at a park near the grandparents’ house.
Yet, while these matters are reported upon and said to form part of the difficulty in ascertaining “the veracity of his answers”, I cannot see any weight given to them in the “Summary and Opinion” provided by Ms Y. For example, no such concern attends her opinion that his “difficult behaviour” is “due in part to his alleged contact with his father; being made to feel that he must keep his relationship with his father a secret; and having to see his grandparents every second weekend”, or the ultimate opinion that she is “unsure as to how much benefit this child will gain from his continued contact with his grandparents, given that it appears that they have chose to defy legal direction”.
Indeed, I find it difficult to see what observational data is used to inform that opinion, or what observations or facts are said to inform the asserted causal connection between the asserted behaviour of the child and the three postulated causes.
Despite specifically asserting difficulty in attaching veracity, veracity is, apparently attached to at least some statements that A has seen his father. One of those statements by A is that he sees his father “every fortnight” – something not alleged by the mother (or anyone else) and something which, on all the evidence is highly likely to be false.
All of those matters fall for assessment against a background where unchallenged evidence by the mother is that A has (unsurprisingly as it seems to me) spoken about the existence of a “pretend Daddy” and according to the mother’s account of the initial conversation, speaks of seeing his pretend Daddy at the park.
None of the father, the paternal grandparents or the father’s partner, Ms F were spoken to by Ms Y. The grandparents and the father’s present partner, Ms F, all give evidence of an occasion at a park when the children were present with the grandparents and with Ms F’s youngest child. Each of the grandparents and Ms F are adamant that the father was not present at any stage during that (or any other) visit to the park. I believe them.
I do not find it surprising, given that context, that the children would fantasise a “pretend Daddy” present at this gathering – particularly when their “real Daddy” had been removed suddenly from their young lives.
Ms B, a reporting psychologist commissioned by the Independent Children’s Lawyer, in paragraph 12.2.7 of her report earlier quoted went on to say in that same paragraph (speaking of observations made in about September 2009):
…Although the evidence is certainly not definitive it does seem likely, based on the reports of the children to various professionals and on my observations of their behaviour with their father, that they have spent time with their father despite court orders disallowing this.
Counsel for the Independent Children’s Lawyer places particular reliance in his submissions upon paragraph 8.3 of Ms B’s Report where she records:
[A] did not appear as excited as I would have expected if they had not seen their father since 2007. [A] had said to Ms [B], that he had last seen his father “at the park last time I went down there”. Ms [B] reports that [A] said “he only saw him that one time, and that he was ‘good’”. If [A’s] statement is, per se, to be relied upon, then, there had been up to that time (interviews were conducted in July 2009) only one occasion when [A] had seen his father, an occasion identified as being “at the park”. All of the matters previously referred to with respect to [A] and his comments apply equally to placing weight upon this comment.
It seems that Ms B’s opinion (at paragraph 12.2.7) that the children have “spent time with their father despite court orders disallowing this” is based, at least predominantly, upon the opinion of Ms Y. (Notwithstanding Ms B’s reference to “various professionals” in the plural, it is by no means clear who is being referred to beyond Ms Y) and on her “observations of their behaviour with their father”.
The observational data upon which Ms B relies appears to be as follows:
8.3 [A] did not appear as excited as I would have expected if they had not seen their father since 2007. As [N] was only two when he allegedly last saw his father, he would not have remembered him other than through photographs. He did not at all seem surprised to see his father but knew who he was. He did not recoil from him at all or appear at all apprehensive around him.
8.4 [A] was very matter of fact and just sat on his father’s knee and read to him – as if he saw him every day.
8.5 I felt that my observations of the children’s demeanour with their father was consistent with their having spent some time with him since 2007.
…
8.15 There was something not quite right about this reunion. The dynamics of the interaction did not appear to me to be consistent with the boys not having seen their father for approximately two years
But, as the heading to that section of the report makes clear, the boys were not observed alone with their father, but with their father in conjunction with their grandparents (who were in the room ahead of the father) who, on any view of the evidence, had been seeing the children with regularity, had a close and loving relationship with them, who had been important participants in their care pre-separation and who had (as seems uncontroversial) continued to promote a relationship between the children and their father through stories, photographs and the like during the father’s absence from the children’s lives.
Given that, in A’s case, the boy observed has, in addition, significant emotional issues and who, at that stage, had only recently turned 5, I find the expressed observation a surprising basis for expressing such a significant opinion in the context of this case. Ms B was not cross-examined.
What I also find somewhat perplexing (as I said to Counsel for the Independent Children’s Lawyer during the course of his submissions) is that Ms B does not appear to me to countenance any other possibilities or explanations for what she observes of the relationship between the father and the children. Not only do the matters earlier referred to present themselves, but, it is plain, on the evidence before me, that the father was a significant part of the children’s lives up until 2007, and it is also plain on the evidence that his image was, as it were, being promoted by the grandparents through photographs, discussions of him and the like.
I can see no evidence in Ms B’s Report that she had considered and rejected other possible explanations for the reaction of the children in favour of the conclusion she has come to either of the type just described or at all. Her observations were never raised with either or both of the maternal grandparents, and their comments were not sought.
Further, there is no evidence that Ms B has examined the role that fantasy might have played in the lives of these children in circumstances where a father was engaged in their young daily lives and then suddenly been removed with no subsequent contact. As I have said, I find it unsurprising in the circumstances of this case that these very young children would fantasise a “pretend Dad” as the earlier quoted paragraph from the mother’s affidavit refers to.
While the mother is prepared to give the account of the “pretend Dad” and seeing the “pretend Daddy at the park” the explanation (at least initially) of it being simply “playing a game and using their imagination”, neither the affidavit evidence itself, or any such explanation, would appear to have been countenanced by either Ms B or Ms Y.
In circumstances where my inclination is to accept the denials of the grandparents, the father and Ms F about contact additional to that which occurred on 2 October 2002, I am not prepared to place weight upon the opinions of Ms Y and Ms B for the purpose of inferring and ultimately finding that there have been occasions, other than the incident on 2 October 2002, upon which the children have come into contact with their father.
(iv) Summary of Concerns
If a person or persons are to act as supervisors of a court order they are, in effect, carrying out an important function in the performance of court orders by parties in circumstances where, by definition, the circumstances have convinced a court of the necessity for that supervision.
The responsibilities are significant and the need for the court to rely upon those responsibilities being exercised by reference to the court’s findings (whether considered right or wrong by the supervisor) is, consequently, also significant.
It is in that context, that concerns expressed about what has been assessed of the personalities and attitudes of the grandparents are of a concern as, too, is their underlying understanding of the nature of their son’s offending behaviour.
So, too, however fortuitous the circumstances surrounding the 2 October incident, the fact that potential supervisors did not see fit to predominate the court order over a (perhaps understandable) reaction to contact between the children and their father is also of concern.
The risk associated with those concerns being born out is that if the father is left alone with the children for (at most) the whole of any ordered times then per force of the earlier findings made, that involves a moderate (and unacceptable) level of the commission of an offence involving pornography and a low (and probably lower than that) risk of a contact sexual offence with his own children. Equally, per force of those same findings, supervision is a measure which mitigates that risk.
Other findings inform an analysis of the nature and extent of any risk:
· I do not consider that the grandparents would consciously, or negligently, expose the children to harm (including the potential exposure to pornography or sexual conduct).
· I consider the grandparents’ relationship with their son and their lack of appreciation of the psychological indicators underlying his offending behaviour increase the possibility of less vigilance on their part than is ideal.
· I consider though, that the likelihood of risks emanating from a lack of appropriate vigilance is ameliorated for so long as the grandparents are aware that the mother (and likely others in the mother’s family) will be particularly vigilant and likely to raise issues of concern. (In that respect the grandfather made it clear during the course of the hearing, that he for one, is aware that, as he sees it, an aspect of supervision is to protect the father from future allegations).
· I consider the amelioration of any risk to be all the greater if a process enshrined in court orders was to emphasise a form of court supervision of their supervisory roles. In my judgment, section 65L of the Act has a useful role to play in that respect.
· No specific courses were identified by Ms D or the Independent Children's Lawyer, that might assist the grandparents in acquiring a greater appreciation of their son’s behaviour or the reasons for it. But, the possibility of their (voluntary) participation in same can remain open and suggestions in that respect can, too, be accommodated within the s 65L process.
Orders reflecting best interests
Parental Responsibility
It will be plain from what is earlier set out that I consider the presumption of equal shared parental responsibility is rebutted by reference to the best interests of the children in this case.
The father has been found significantly wanting in the exercise of parental responsibility by reason alone of the commission of these serious offences. His current rehabilitation and treatment are very much a “work in progress”.
The mother is plainly the children’s primary carer and has been for some time. She is unchallenged in that role.
The parents are unable (and probably unwilling) to engage in the type of active process contemplated by s 65DAC if they were to share parental responsibility. It is highly likely that the father’s parents will seek to intervene in any such process and their intervention in the past has caused distress to the children’s primary carer and been the subject of court injunction. It is important that the children be able to receive from their mother stable and consistent parenting without her feeling “pressured” by the paternal grandparents.
It is, in my judgment, appropriate that the mother have all the duties, powers, responsibilities and authority in respect of the children’s “major long term issues” as that expression is used in the Act.
That said, it is in my view equally important for the orders to make provision for the father to receive information from the children’s schools and the like and to receive information in respect of significant medical treatment or illness. Orders will reflect that determination.
Balancing competing considerations
Those conclusions, together with the earlier findings, point to the children’s bests interests being met by attempting to fashion orders that mitigate the risks as assessed by me, and to commence and develop a meaningful relationship between the children and their father. I consider that doing so appropriately balances the statutory Objects, Principles and Considerations.
The risks, as identified and analysed, should, in my view be met by:
· Ordering that the father’s time be supervised.
· Ordering that the father’s communications with the children be vetted, in that communication by computer or text shall be prohibited and letters and cards shall be sent via the mother and read by her first.
· In light of the paternal grandparents’ criticisms of the mother, in the past, including, for example, their reports about her to the State Welfare Department, I consider it appropriate that a similar restriction apply to them. I intend to apply the restriction in respect of computer and text message communication, so as to avoid any indirect communication with children in that manner by the father, and so as to ensure that all communications with the children can be seen by the mother.
· Ordering a s 65L process, and that the Independent Children's Lawyer remain in the case.
· Ordering that a Family Consultant and/or the Independent Children's Lawyer receive information, and that a Family Consultant be involved (through the s 65L process) in explaining the orders to the children; preparing them for their first supervised visit with their father; and checking on the progress of time with the father and the children’s grandparents.
· Ordering that the grandparents’ supervision of the father’s time be the subject of scrutiny by the Family Consultant or the Independent Children's Lawyer, via that same process.
Those orders seek to develop a beneficial, meaningful relationship between the father and the children by time more regular than that which could occur if the Independent Children's Lawyer’s proposal was accepted and by facilitating supervised time in a “non-clinical” setting by using supervisors to whom the children are clearly closely attached.
The orders seek to develop a beneficial, meaningful relationship between the children and their paternal grandparents by providing for time about every six weeks or so; in my judgment, time more regular and frequent than that proposed by the mother or the Independent Children's Lawyer is in the children’s best interests, given the close attachment which I find exists between the children and their grandparents.
Equally, however, those separate (but related) meaningful relationships should, in my judgment, occur in a way which will at the same time allow the mother to experience stability in her primary parenting of the children and without, as she perceives it, “pressure” or “interference” by the grandparents. The orders seek to achieve that by providing for approximately six weeks between the periods of time otherwise determined to be in the children’s best interests.
When account is taken, in particular, of the children’s ages and stages of development, I consider there is a greater risk of recidivist conduct by the father if time encompasses overnight visits. So, too, I consider the risk of periods of lack of vigilance by the grandparents to be potentially greater if overnight time is included in orders. Ordered time will be during the day only.
In the longer term, there is, in my judgment, likely to be a significant diminution in the risk posed by the father if he receives counselling and/or treatment of a type envisaged by the Sexual Offenders Program run through the Corrective Services Department (Qld) or courses of a similar type, to be undertaken as part of the father’s probation, and, probably by the father undertaking long-term supportive psychotherapy. However, I consider it will be detrimental to the children – particularly given their respective ages and stages of development and the amount of time that their father has been out of their lives – for time with them to be, in practical terms, suspended pending the occurrence and completion of those courses and/or treatment and all the more so, if the father was then required to commence and prosecute further parenting proceedings before time with the children could take place.
I also consider that the grandparents would benefit from undertaking courses designed to assist them in understanding the psychological influences and ramifications of the father’s offending behaviour. I consider that insight gained through courses of that type would significantly diminish the risk of their failure to be appropriately vigilant. However, I see little utility for the children in forcing the grandparents to do so, either as a pre-condition to time being spent by them or the father, or generally, in circumstances where, absent those courses, I assess the risks posed by them to be tolerable in combination with the other orders proposed to be made.
It is appropriate that the professionals associated with the father’s post-prison courses and/or treatment undertaken during, or as a condition of, his probation or parole, should be able to liaise with the Independent Children's Lawyer and the Family Consultant contemplated by the orders about to be made, and that each of them, in turn, can liaise with those professionals. The former are, by definition, concerned with the father’s rehabilitation and that rehabilitation is central to the future shape of the father’s relationship with his children.
In my judgment the best interests of the children are met by orders of the type just discussed, reflecting the findings earlier outlined.
I order accordingly.
I certify that the preceding one hundred and seventy-eight (178) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy.
Associate:
Date: 4 June 2010
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