Harvey & Patterson
[2008] FamCA 809
•1 October 2008
FAMILY COURT OF AUSTRALIA
| HARVEY & PATTERSON | [2008] FamCA 809 |
| FAMILY LAW - CHILDREN - With whom a child spends time and communicates - Best interests of a child – consideration of the term ‘meaningful’ in the context of s60CC(2)(a) - order that there be limited communication and no time spent between the child and the father. FAMILY LAW – CHILDREN – SEXUAL ABUSE – unacceptable risk - father sexually abused child’s siblings and father’s sisters– effect on child’s family unit. |
| Family Law Act 1975 (Cth) Moose & Moose [2008] FamCAFC 108 |
| APPLICANT: | Ms Harvey |
| RESPONDENT: | Mr Patterson |
| FILE NUMBER: | HBF | 1076 | of | 2006 |
| DATE DELIVERED: | 1 October 2008 |
| PLACE DELIVERED: | Hobart |
| PLACE HEARD: | Hobart |
| JUDGMENT OF: | Benjamin J |
| HEARING DATE: | 27 & 28 August 2008 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Barker |
| SOLICITOR FOR THE APPLICANT: | PWB Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Geason |
| SOLICITOR FOR THE RESPONDENT: | Butler McIntyre & Butler | |
| INDEPENDENT CHILDREN’S LAWYER COUNSEL: | Mr Patrick Fitzgerald | |
| INDEPENDENT CHILDREN’S LAWYER SOLICITOR: | Legal Aid Commission of Tasmania |
Orders
The mother have sole parental responsibility in respect of … born … January 2000 (“the child”).
The mother keep the father informed in relation to long term issues in respect of the child namely:-
(a)the child’s education;
(b)any proposed changes to the child’s religious and/or cultural upbringing;
(c)major issues of health;
(d)any further proposed changes to the child’s name.
Both parents provide a post office box address or other mail address to the other party (through their respective solicitors) within fourteen days of the date of these orders and keep the other party informed, through such addresses, of any change/s of mailing address.
The child live with the mother.
The child and father communicate by way of letters and cards posted through the postal addresses referred to above, provided always that the mother shall be entitled to read cards and letters from the father to the child.
Until another order of a court exercising jurisdiction under the Family Law Act or written agreement of the mother or upon the child attaining the age of 18 years, the father is restrained from contacting, meeting or communicating with the child in any way, other than through letters and cards pursuant to these orders.
Pursuant to s 65DA (2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
The Independent Children’s Lawyer inform the child of the nature and effect of these orders within twenty one days from the date of these orders.
The appointment of the Independent Children’s Lawyer be vacated twenty eight days from the date hereof or such further order or other time as is determined by a Court.
This matter be removed from the list of cases requiring determination.
All subpoenaed documents be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same.
IT IS CERTIFIED
Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.
Publication of this judgement under the pseudonym Harvey & Patterson is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT HOBART |
FILE NUMBER: HBF1076/2006
| MS HARVEY |
Applicant
And
| MR PATTERSON |
Respondent
REASONS FOR JUDGMENT
These are proceedings between Ms Harvey and Mr Patterson. The proceedings relate to their eight year old child, a daughter (“the child”).
An independent children’s lawyer was appointed to represent the interests of the child in these proceedings.
The mother sought an order that she have sole parental responsibility and that the father be notified of major issues relating to school, health and the like.
The father sought orders that there be several parental responsibility as provided under s61C of the Act. His counsel submitted that this was in part so that the father could give his explanation of the events which brought about these proceedings.
The father seeks supervised time with the child on a fortnightly basis and on the proviso that the supervisor be someone independent, probably a children’s contact service. He seeks that this arrangement ought to be reviewed in about twelve months’ time, on the basis that this would eventually lead to unsupervised time with the child.
The mother seeks orders that there be no face to face time between the father and the child.
There is agreement that the father should be able to send letters and cards to the child, provided that the mother can read that material and on the basis if there are inappropriate comments in that material the mother may withhold that from the child. The aspect of letters and cards is not in issue to be determined by me.
In relation to the question of time counsel for the independent children’s lawyer’s submission was that the child should spend regular supervised time with the father.
In these reasons any statement of fact is to be regarded as a finding of fact unless the contrary intention is clear from the context of the statement.
BACKGROUND
At the date of hearing the mother was aged forty five, she is in good physical health. The father was aged forty six and is in good physical health. The mother has two children from a previous relationship, namely Mark (a pseudonym) aged eighteen and Helen (a pseudonym) aged fifteen. The mother, the child, Mark and Helen live together.
The father and mother married in September 1998 and separated in September 2006. The child was born during the time the parties lived together.
In December 2006 the father was convicted of serious charges relating to his sexual abuse of Mark and Helen. As a consequence of that conviction the father was sentenced to 18 months’ imprisonment, he served about 7 months.
THE EVIDENCE
Evidence was given by the mother in accordance with her affidavits filed 15 July 2008 and 11 September 2006. These affidavits were read into evidence without objection. Tendered in evidence were two hand-written letters and seven cards[1] which had been referred to in paragraphs 21 and 23 of the mother’s affidavit.
[1] Exhibit M1.
These represented somewhere between twenty per cent and thirty per cent of the cards and letters forwarded by the father to the child over the last few years. The mother complained about some phrases in the cards, such as:-
“I really wish I could be with you today but we both just have to wait until the people let us be together again”
“This makes me very sad but there are people who are trying to make it hard for us to see each other”
“I do miss you very much and it makes me very sad that I cannot see you when I would like to”
“I still miss you lots and look forward to the day when we can see each other again. Then you can help daddy chose a new doggy.”
One of the letters sets out:
“I am very sad though because there are people who won’t let me see you or talk to you on the phone.”
Another letter provides:
“I would love to see some of your work but I am not allowed to yet. I am trying very hard to make the people who are stopping me, to let me able to see you.”
The mother says that the cards are inappropriate as they endeavour to blame others for the father not being able to see the child and create expectations in the child’s mind that she will see the father in circumstances where it may be that she will not see the father. The mother is also of the view that it shows an inability of the father to understand the effect of the abuse on Helen and Mark in terms of the mother, the child and Helen and Mark. I accept that evidence.
The father’s explanation was that he did not understand the impact of these cards upon the child and that he would now change his ways. I do not accept his explanation. After seeing the father in the witness box, assessing his demeanour and hearing his evidence, I am satisfied that he was implicitly expressing that the mother was endeavouring to unreasonably prevent him from seeing the child.
The mother’s evidence is also contained in statements she made to the single expert, Dr B. He prepared a report in February 2008.
The mother’s evidence was that she married the father in September 1998. Soon after the child was born, Mark complained to her that the father had touched his penis. The father was apologetic and played the incident down and he untruthfully said that this occurred when he was tucking Mark into bed. The mother believed the father and accepted his explanation. The mother now realises she should not have done so.
In about 2002 Helen disclosed to the mother that the father had been inappropriately touching her. The father again lied to the mother and denied touching the child. The mother believed the father and accepted his explanation.
The mother told the single expert that there was tension in the home became which became more marked after the child was born. Helen and Mark did not like the father and the mother was caught between her commitment to the father and her love of the children. The father suggested that Mark ought to live with his natural father. The mother said that she hated confrontation and was intimidated by the father’s temper although he was not physically violent to her.
In September 2006 Helen again informed the mother that the father had sexually abused her. The mother believed Helen on this occasion and reported that allegation to police.
As a consequence the father was charged with serious offences:-
1.Maintaining a sexual relationship with Helen who was under the age of seventeen years.
2.Two counts of indecent assault on Mark.
Those charges came before a Magistrates Court and the father said he was not guilty. Subsequently at the Supreme Court of Tasmania he pleaded guilty to the sexual abuse of Mark and Helen. He was sentenced to eighteen months’ imprisonment, and served about seven months in jail.
After the father was released from prison he pursued an application to spend time with the child. In December 2007 the mother did not consent to the father seeing the child to give her birthday and Christmas presents. The father left messages on the mother’s telephone which were abusive and included expressions such as:
“I will be in your face forever”
“I will piss on your grave.”
The father conceded that these were spiteful messages. He says that these arose as a consequence of his stress, disappointment and alcohol. I accept the mother’s evidence in respect of these calls which are, in any event, not contentious, the father admits to them. As a consequence of those calls a family violence order was put in place which order will remain in effect until December 2008.
In 2008 the mother applied to the Magistrates Court in Hobart to change the child’s surname. The father did not oppose that application and an order was made giving the mother permission to change the surname. The mother was cross-examined by counsel for the independent children’s lawyer about the name change and what gave rise to it. The mother said it arose from the general knowledge of the father’s crimes and imprisonment within the then school and the child’s expressed wish to change her name.
The questioning implied criticism of the mother in relation to the name change. The mother also changed the child’s school so that the child could have a fresh start with a new surname. I make no adverse findings in relation to the mother in relation to this as it was taken out as a protective device for the child who was dealing with issues arising from her father’s criminal behaviour.
The mother facilitates the child’s access to the cards and letters forwarded by the father. The mother checks the cards and has rightly rejected many. The remainder of the cards and letters have been read by the mother to the child and the mother says that she is not judgmental and encourages the child to respond to them. The child reads the cards and hands them back to her and that the child expresses no interest in keeping the cards. The mother says she encourages the child to reply to the cards and letters, without success. I accept the mother’s evidence about the letters and cards.
The mother has arranged for the school to send reports to the father or has forwarded them to him herself.
The mother was questioned by counsel for the father as to her concerns about the risk to the child if she saw the father in a supervised situation such as a contact centre. The mother agreed that the child would not be at risk of physical abuse. She also agreed that the child would not be at risk of inappropriate communication in that supervision.
The evidence of the mother was that her concerns were much greater than physical abuse and verbal communication and I accept that her broader concerns are real. In particular, I accept the mother’s concerns about the effect of the abuse on Helen and Mark.
Helen is fearful of the father and is anxious about seeing the father in the street. She hears noises in the home and is afraid of the dark. Mark has undergone counselling and was anxious for a long time. He is now angry and fearful of the father. Bearing in mind the abuse perpetrated upon them, these reactions are entirely understandable.
I accept that the impact of the father’s abuse on Mark and Helen has been profound and continues.
These reactions of Helen, Mark and the mother impact in terms of the family unit. The child is aware that the father has done something wrong in terms of breaking the ‘touching rule’. I accept that the mother, Helen and Mark are protective of the child and are alive to the need to avoid the distress to her of greater or more detailed disclosure of the father’s criminal and abusive behaviour.
Seeing the mother in the witness box, accepting her evidence in the affidavit and accepting statements she made to the single expert, I am satisfied that the impact of the attacks on Mark and Helen has had a profound effect on the mother. Whilst the mother allowed the father some supervised time with the child between September 2006 and when he went into prison in December 2006, the mother cannot now contemplate the child spending face to face time with the father. The impact of this upon the mother is clear from her demeanour in the witness box and her struggles to adequately deal with challenging questions in respect of those matters.
I accept that the mother would find it difficult to manage regular face to face supervised time between the child and the father. I am not satisfied that the mother would be able to adequately cope with any unsupervised time if I came to the conclusion that such approach would be in the child’s best interests.
The mother’s was reported by the single expert in this way:-
“She [the mother] recognises that [the father] is [the child’s] father but believes he has relinquished any right to be her father by his behaviour. She hates him for what he has done and feels Helen will never get over it. Mark has assumed a fatherly role in the family.”
The sexual abuse by the father on his step children has had a devastating effect on the mother, Helen and Mark. This would impact on them as they send the child to face to face time with the father on a regular basis. It could mean that the sexual abuse is revisited on this family on a regular basis. Inevitably as the child grows older she will become more and more aware of the reasons for supervision and the adverse impact such visits have on her mother and siblings.
I am satisfied that the children have a close, warm and loving sibling relationship with each other and the mother and I am satisfied that the children are in a stable and tranquil household in the care of the mother.
The mother says, and I accept, that the child does not indicate to the mother any interest in seeing her father. I do this in the knowledge of the evidence of the response of the child to the father as observed by the single expert.
The mother gave evidence of a statement from Mark that he saw the father jogging past the mother’s then home at O and pausing within sight of the home. The mother reported that Mark saw the father as he was behind a telegraph pole. The father admitted that he did jog by and pause within sight of the mother’s home but that he was not hiding; he said he took a mobile telephone call and that he was not in breach of any orders, bail conditions or parole conditions. The mother’s evidence was that where the father was jogging it was not necessary and was in plain sight of the house. I find that his actions in jogging so close to that home (bearing in mind the circumstances of his crimes on the elder children) indicates his lack of insight into the impact of his crimes on them and his self absorption.
Mark and Helen are both anxious about the child spending time with the father. If she does spend time on a regular basis it will impact on them which will consequently have a negative impact on the child.
I am satisfied the mother has adopted a sensible and sound approach to parenting of all three children, in particular the child, both before and after the separation in September 2006. She is an impressive witness who has managed a very difficult circumstances in a child focused way.
The mother provides a loving and warm household and a stable environment for all the children. The impact of the father spending regular face to face time with the child will significantly disturb this household which is already endeavouring to deal with the emotional and psychological aftermath of the father’s crimes.
In saying that I accept her evidence the mother’s reluctance to admit anger at the father during cross-examination was subjective but understandable. Her evidence was not seriously challenged by counsel for the father and was not shaken by cross-examination on behalf of the independent children’s lawyer.
The mother relied upon an affidavit by Ms K of the Sexual Assault Support Service. Ms K observed:-
“Both Helen and Mark have been hugely affected over a long period of time by the sexual abuse. Their abuse by [the father] has dominated a major part of their lives and made them feel unsafe and isolated in their own home and left them with trauma responses to overcome in the future.”
That evidence was admitted without controversy and I accept that evidence.
Evidence was tendered, without objection, in relation to the husband’s convictions, this being the following:-
ICL1 Comments on passing sentence by sentencing judge in December 2006.
ICL2A transcript of the videotape interview between the father and police conducted on 6 September 2006.
ICL3Report of Dr S obtained on behalf of the father in his criminal proceedings and dated 11 December 2006.
ICL4 Statutory declaration of Helen sworn 6 September 2006.
ICL5 Statutory declaration of Mark sworn 25 September 2006.
ICL6Statement of crimes and Crown Statement of Facts dated 2 November 2006.
ICL7 Parole Board transcript 22 June 2007.
ICL8 Pre parole report dated 24 May 2007.
The father gave evidence in accordance with his affidavit of July 2007. The father asserts that he does not pose a risk to his daughter and he is prepared to submit to any conditions the court considers imposing. In the course of these proceedings the father saw the child with the single expert on 23 November 2007 and the child sat on his knee and interacted with him. The father says on that basis that the child is not distressed by him and that the child has missed him.
The father says that he has been receiving treatment from Dr W, a psychologist and intends to continue to do so. The father did not undertake a sex offenders’ course in prison as he was not incarcerated long enough for that to take place.
The father asserts that his statements made to the single expert as set out in the single expert report were true.
The father has a history of abusing children. The abuse commenced with his three sisters. The father was the elder of four children, a sister Mary [a pseudonym] about one or two years his junior, Deborah [a pseudonym] about two or three years his junior and Sharon a [pseudonym] about five or six years his junior. From his age of about fourteen or fifteen the father commenced sexually abusing his sister Deborah.
The father admitted that his abuse of Deborah continued for about four to five years from the time he was fourteen or fifteen to the time that he was about nineteen or twenty. The father was away from the home for a period of time after his seventeenth birthday. The abuse of Deborah included digital penetration of his sister and was on a regular basis. In addition the father admitted abusing the oldest sister Mary on two occasions and the youngest sister Sharon on about half a dozen occasions.
Deborah was interviewed by the single expert and she confirmed that she had been sexually abused by her brother over a period of five years as was her younger sister. The behaviour asserted by Deborah (and to a large degree conceded by the father) was almost identical to the type of abuse the father subsequently inflicted upon Helen.
Deborah says she recalls that the father was caught by his father on one occasion. This is disputed by the father.
After the father left his parent’s home he commenced training in community services. He completed that training and the father conceded that part of that training was general information as to what happens to children who are sexually abused.
The father commenced living with the mother in September 1998. From about 2001 (possibly earlier) until the end of 2004 (there is some controversy as to these dates, to which I will return) the father regularly sexually abused Helen in a similar way to the way he had sexually abused his sisters. The Supreme Court Judge, in sentencing the father observed a number of things:-
The boy [Mark] was distressed by the indecent assaults on him. During the following five years or so, whilst the [father] remained a member of the household, the boy [Mark] remained anxious, felt unsafe and isolated in his own house. The girl [Helen] was unhappy for about five years of her childhood, still feels sad, and has intrusive memories. She is likely to have ongoing psychological difficulties and will need a lot of support. The psychological impact on the children’s mother has been enormous. However [the father] decided to plead guilty at a very early stage, with a result that it was known from a very early stage that neither of the children would need to give evidence.
The [father’s] selfish abuse of these children involved breaches of trust placed in him by them and their mother.
The father’s evidence in relation to the assaults on Helen is somewhat difficult to reconcile with the material that went before the Supreme Court of Tasmania. The father says that he stopped abusing Helen about four to four and a half years before September 2006. He says that he commenced abusing Helen before he assaulted Mark. Helen’s evidence was that she was about eight years old when the father started coming into her room and sexually abusing her. The sleeping arrangements were for a time that Helen slept on the top bunk and the child slept on the lower bunk. To protect herself Helen lined all of her toys up beside her in bed to stop the father from being able to reach her but it did not work. She wore her pants to bed. Neither of these protective measures deterred the father in his abuse of Helen.
The father entered a plea of guilty to those assertions of fact as are set out in exhibit ICL6. He now says that the assault was not at the same level to which he pleaded in the Supreme Court and offers an explanation that he was endeavouring to protect the children from giving evidence. I do not accept his explanation. I accept his admission of guilt to the facts given to the Supreme Court. The father has a tendency to minimise his culpability and I find that this continued up to the hearing of these proceedings.
Even at that level there are some concerns about the extent of his abuse of the children. The indictment shows that he was alleged to have abused Helen from June 2001 to December 2004 (a period of about three and a half years).
The father admitted to sexually assaulting Mark on two occasions in early 2001. The father’s evidence is that he commenced abusing Helen before he abused Mark. Therefore the abuse of Helen must have commenced before early 2001 which would put it sometime in the year 2000, if not before. The father was not entirely frank in respect of this evidence.
The father offered an explanation to the police in his record of interview as to why he abused Helen. The father had suffered head injuries in Queensland in 2002. This excuse did not explain his abuse of the children prior to his head injuries. I find that the use of his head injuries was an endeavour to limit his culpability in terms of his behaviour with these children. He asserts that his head injury made him, amongst other things, more disinhibited and more emotionally volatile. The father told the police in the police interview in answer to a question about his actions:-
I was able to see what I was doing was wrong at the time, I wasn’t in a good place in my head, I had a serious head injury, I think that affected my judgment, I was drinking heavily which also affected my judgment and I am not using that as an excuse, just saying my judgment was easily affected at the time.
The father was endeavouring to evade or minimise responsibility for his behaviour.
The father’s evidence must be seen in the light of his approach to the truth over the years. The father did not disclose to his parents his abuse of his sisters.
When Mark complained to his mother of being sexually abused and told her that the father had been touching him the father denied sexually abusing and diminished what had happened. Similarly when Helen complained to her mother of being sexually abused the father again lied to the mother and denied and diminished what had happened.
In the single expert report[2] the single expert relates;
In his application [affidavit] filed 5/10/06 [in the Family Court] the [father] states that he does not admit the allegations in relation to sexual abuse of the children, as set out in the mother’s affidavit (these are matters to which he subsequently pleaded guilty and was sentenced as set out above).
[2] Page 3 under ‘Affidavit of [father].
This evidence, which was not challenged, must also be seen in the context of the father admitting these very same allegations in an interview with police on 6 September 2006 - about one month before the affidavit referred to by the single expert.
Having regard this material and to my other concerns set out elsewhere in these reasons, I do not accept that the father is a reliable witness. His evidence must be treated with great care.
The father conceded that he knew that his conduct was both wrong and illegal and that whilst the action was sexual it was motivated by power, not solely sexual gratification. He admitted that after he had assaulted both Helen and Mark it gave him a sense of “relief”.
I have concerns about the father’s explanation of jogging near the mother’s home. The father told the Parole Board in June 2007[3] in reply to a question about the mother’s whereabouts;
“It would be about 7ks away [from where the father intended to live] I suppose. I have no need to go through [the mother’s suburb of O] on any sort of regular basis…”
[3] Exhibit ICL7 – page 3
Yet despite this assurance to the Parole Board he jogged passed and stopped in front of the mother’s former home. His explanation that he just happened to be jogging past when his mobile phone rang, beggars belief.
I also have concerns about his explanations in relation to the letters and cards which the mother withheld. The father said those expressions were used out of lack of insight rather than any desire to “blame the mother” or “blame others”. I do not accept his explanation. The expressions were clear and the consequences must have been clear to him.
The father gives answers in which he is endeavours to show remorse. I am concerned that the remorse may be more in line with his concerns about having been caught rather than his concerns about the damage he has caused to the mother, Helen and Mark and consequently the child. At the end of cross-examination by counsel for the independent children’s lawyer he was cross-examined about the importance of the relationship between the child and her eldest siblings. Initially his answers were almost dismissive but eventually he said that their relationship was equally as important as his. I do not accept that he has any significant insights into the relationship between the siblings nor to the damage he caused Helen and Mark despite his evidence to the contrary.
Dr S observed in his report[4] in answer to a question, the following:-
3. Specifically, whether or not in your opinion [the father] is a further risk of offending.
Regrettably, there is a risk of further offending. This involves risk to children in his direct care, eg. within a household or family situation.
It is therefore important [the father] undertake some form of treatment. In addition, facilitating factors such as the use of alcohol need to be addressed.
[4] Exhibit ICL3
It was accepted that Dr S is a particularly experienced psychiatrist of many years’ standing who was commissioned to prepare that work on behalf of the father. The father said that since that time he has addressed the issues of stress, alcohol and put himself under the care of Dr W.
The father said, and I accept this part of his evidence, that supervised time for long periods is “not in the child’s best interest”.
The mother complained that in the time that the father spent with the child prior to the father’s imprisonment he was intrusive in his questioning of the child. This is reflected in the evidence provided by the single expert where he reports:-
“[Dr B][5] noted that while I was out of the room [the father] continued to read for a time. … Dr B also noted that [the father] appeared somewhat intrusive with questions, particularly relating to his letters.”
[5] Single expert report page 13 final paragraph
I accept the mother’s evidence and this evidence that the father is intrusive in respect of his questioning of the child and is reflective of his long term behaviour of endeavouring to control.
Evidence of Dr W
Dr W gave evidence in accordance with his affidavit. His qualifications were not in issue. His report was read into evidence.
Dr W is a Clinical Forensic Psychologist with expertise with regard to sex offenders. He has had a therapeutic relationship with the father since July 2007 and that relationship continues.
He initially observed the father as a “depressed, ashamed and anxious” person although Dr W believed he had somewhat rigid belief systems and poor problem solving and emotional challenges.
The doctor said that the father presented with some avoidant personality traits and he tended not to reflect on specific offending behaviours once they had been completed. Victim empathy was apparent but not particularly well formulated and the father was prone to engage in compartmentalisation.
Dr W’s evidence was that the father has made reasonable gains in terms of understanding the offending behaviour and is generally functioning in a well balanced way.
In terms of the prognosis for the father Dr W was very guarded and appeared to be phrased in a way to preserve the doctor/patient relationship.
Dr W gave evidence that he
“can’t see a time when there was no risk to a child [in the unsupervised care of the father], and
all one could consider with regard to the father was supervised time.”
The actions of the father in relation to the telephone messages he left on the mother’s phone on 17 December 2007 were indicative of the father’s self centred nature and desire to control. It is concerning that this behaviour continued after the father has met the consequences of his previous actions, namely:-
- he had seen his marriage fail,
- he had seen his life change dramatically and irreversibly in a negative fashion,
- he had been convicted of serious crimes,
- he was no longer able to work in his chosen profession,
- he had been sent to prison,
- his face to face time with his daughter has ceased, and
- he had undergone about six months of therapeutic counselling
and yet the father still presented in an inappropriate way in December 2007.
Dr W observed this is not “easy to fix” and that “whilst the father has the intellectual acknowledgement of what he had done was wrong, he did not have the emotional insights.” It was the view of Dr W that the crimes were motivated by a package of factors including sexual gratification, anxiousness, need to control and punishment.
In many ways this evidence assists me in a determination on one of the issues. That arises from the evidence of the father in relation to the nature of his assault on Helen as accepted by him between the Supreme Court and his statement to the single expert and his evidence to me. The father said that he did not challenge this evidence as he did not wish her to cause further harm to Helen. That was one explanation, the other is that he is now trying to minimise what had occurred to Helen.
It was clearly in the father’s interest to enter a plea of guilty at the earliest possible time and as a consequence of that there was a significant reduction of his time in prison. The judge observed[6]
“Because [the father] has shown every sign of reform since ceasing to abuse his step daughter, I will suspend part of that sentence and impose the shortest possible non-parole period”.
[6] Exhibit ICL1.
The father had in early September 2006 admitted to the police his sexual abuse of Helen and Mark[7], he subsequently entered a plea of not guilty in the Magistrates Court and also did not admit his previously admitted behaviour in an affidavit filed in this court. I find that the change of the father’s evidence with regard to the nature of his sexual assault upon Helen is arising from his characteristic of minimising his predatory behaviour. That is of concern in that that minimisation occurring during up to the time and including the time of the hearing.
[7] Exhibit ICL 2.
Dr W believed that a review of any arrangements that were put in place in twelve months’ time would be too soon but there should be ongoing monitoring.
Evidence of the single expert
The single expert gave evidence in terms of his report. There is no issue as to the single expert’s qualifications and his report was read into evidence. The single expert recommended that there ought not to be shared parental responsibility nor should there be unsupervised time with the child at this time.
In coming to that conclusion the single expert had regard to the anxiety it caused the mother and the child’s siblings. The single expert recommends that the father spends supervised time at a Contact Centre four hours per fortnight and subject to the father attending a therapist. He further suggested the child should be enrolled in a protective behaviours program and that the mother should be encouraged to attend counselling with the Child Sexual Assault Support Service to help explain to the child the reason for restrictions in contact and how to deal with the father and her own feelings.
The single expert interviewed the father on two occasions. In addition he saw the father with the child. He interviewed the mother, the father’s sister Deborah and the child.
The single expert chose not to interview Helen or Mark. In the circumstances of this case that is an entirely appropriate decision and bearing in mind the principles set out under Division 12A of Part VII of the Act it is entirely consistent with the approach that ought to be adopted.
The single expert gave evidence that it was quite moving to witness the meeting of the father and of the child in Hobart last year and that there was a genuine relationship between them. This needs to be seen in the context of a number of issues. The first is his views[8] that:-
“When reading a story to the child, the child looked sad, disinterested and not really engaged in the story.”
[8] Single expert report page 13 paragraph 5
It was observed that the father was intrusive with his questioning particularly intrusive in his questions of the child, particularly in relation to letters.
The single expert was aware of the views of Dr S and in evidence the single expert acknowledged that Dr S is a colleague who is well respected as a medical legal psychiatrist.
The single expert said the behaviour of the father to his three sisters and in regard to Mark and Helen was very serious behaviour and his concerns were more acute by the fact that at least with regard to one of the father’s sisters and with regard to Helen the behaviour was over a long period of time, measured in years.
The single expert said that the abuse was not predatory outside the family. It was put to the single expert that the voluntary cessation of the abuse on Helen may be seen in a positive light. He agreed although I am not sure that that is the case, as Helen was becoming much older and the father’s risk of discovery must have been increasing.
The single expert’s evidence was the father’s behaviour in leaving the telephone messages on the mother’s telephone about 17 December 2007 is a matter for concern.
The single expert was not overly concerned about the father writing to the child about helping choose a new dog, but expressed some limited concern in relation to the father not acknowledging his own behaviour in the cards and letters he sent to the child.
On page 11 (paragraph 6) of the single expert report the father had made statements in respect of the impact on his sisters of his sexual abuse of them. Apparently one of his sisters had been admitted psychiatrically and the other one was on a methadone program (in which the single expert said must have arisen out of use of narcotics). The father did not initially regard himself as involved in this behaviour although by implication now does so. This again has a sense of minimisation to it.
I am also concerned about the fact that the father wrote an apology to one of his three sisters and then subsequently asked that sister to assist him in relation to his desire to spend time with the child. This is indicative of manipulative conduct by the father.
The father’s inability to reflect upon himself is also shown in the statements of the mother (not challenged) at page 9 of the single expert report in respect of his anger.
Finally it is of further concern as to the callousness and insensitivity of the father around the time he was abusing both Helen and Mark that he was content to recommend to the mother that Mark should move out and live with his father. This reflected on his own needs and his own selfishness and was not alive to the reality that he had been sexually abusing this child. The betrayal of trust by the father with regard to all five of these young children abused is very significant.
The relevant legal principles pursuant to the Family Law Act
In exercising its jurisdiction in relation to children, the Family Court is bound by the provisions of the Act. The objects of the provisions of the Act relating to children are to ensure that the best interests of the children are met by[9]:-
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
[9] s 60B(1) Family Law Act 1975 (Cth).
The basic principles underlying those objects are that, except when it would be contrary to a child’s best interests[10]:
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
[10] s 60B(2) Family Law Act 1975 (Cth).
Each of the parents of a child has complete but several parental responsibility for such child[11]. Section 61DA provides that a court must apply a presumption that it is in the best interests of a child for that child’s parents to have equal shared parental responsibility for the child.
[11] s61C Family Law Act 1975 (Cth).
If the presumption is in the best interests of the child and reasonably practicable[12], then a court must make a positive order or declaration for equal shared parental responsibility under s 61DA of the Act. If not, then the court must either make a declaration that the presumption does not apply as a consequence of s61DA(2) or, if the parenting order is made in interim proceedings, the court must find that such a joint parental responsibility order would not be appropriate in the particular circumstances of that case under s61DA(3). Additionally, if the presumption would not be in the best interests of the child then the court should make a declaration that the presumption has been rebutted pursuant to a determination made under s61DA(4) of the Act.
[12] s 65DAA(1) Family Law Act 1975 (Cth).
Once the question of parental responsibility is resolved then the court needs to determine the question of with whom the child lives and/or spends time with and the degree of communication a child is to have with another person[13]. In this case there is no issue as to where the child lives, the only question is should the child should spend time or communicate with the father.
[13] s 64B(2) Family Law Act 1975 (Cth) sets out the meaning of a parenting order and related terms.
In determining what orders it should make the court must regard the best interests of the child as the paramount consideration. Section 60CA the Act provides:-
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
The factors that the court takes into account in determining what is in the best interests of a child are set out in s60CC of the Act.
Under the Act best interests of the child are determined under a 2-tiered approach pursuant to s 60CC, which lists ‘primary considerations’ and ‘additional considerations’. A court must consider the matters set out in s 60CC unless considering a consent order, in which case the court may, but is not required to, have regard to the matters set out in ss 60CC(2) and (3) of the Act.
To give effect to s 60CC (2), the court must treat the listed considerations as being the “primary considerations”. This does not mean that they inevitably outweigh the other considerations, but some weight must be attached to the term “primary”. The Court must consider each of the additional considerations separately.
The Court should also have regard to all of the matters set out in s 60CC to consider how, together, they should give effect to either or both of the primary considerations in determining the child’s best interests. It must not be forgotten that s 60CC (1) makes clear that
“Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3)”.
In this case the primary considerations set out in s 60CC (2) of the Act go to the core of this decision, although they must be taken into account with the other considerations under s 60CC (3).
The import of a meaningful relationship in the context meaning of the primary considerations was considered by Bennett J in G and C[14].
[14] G and C [2006] FamCA 994.
I agree with her Honour’s approach that “the court must evaluate the nature and quality of the relationship to establish whether there is any “benefit to the child” in having or continuing a relationship and whether such relationship is or will be “meaningful”[15]. The evaluation should include consideration of whether, on the facts, a meaningful relationship can be established and, if so, whether it is of benefit to the child.
[15] Ibid paragraph 68.
There is no statutory guidance as to what factors I should consider in determining what constitutes a “meaningful” relationship between a child and a parent. Some of the considerations I regard as relevant and which I take into account are as I set out in Cave & Cave [2007] FamCA 860:
a)The nature of the relationship which has existed in the past between the parent and the children;
b)The extent to which the parent in question has sought to be involved in the children’s lives;
c)The attitude of the parent in question to the children, their primary carer and other significant persons in their lives;
d)The general social behaviour of and the role model which would be provided for the children by the parent in question;
e)The personal disposition of the parent in question, that is, is he or she able to engage in a meaningful relationship with the children and for the benefit of the children;
f)What can be discerned from the evidence about the children’s view of the relationship, or if they are too young or unable to express a view, what is the most likely view they may hold having regard to their ages and level of maturity.
g)The other considerations under ss 60CC (2) (b), (3), (4) and (4A) of the Act, insofar as they may have an impact on the relationship between the children and the parent.
h)If orders are not made as sought by a parent, what would be missing from the lives of the children at present and into the future.
In a recent paper[16] the Honourable Richard Chisholm considered the meaning of the phrase “meaningful relationship” including examining its use both prior to and after the 2006 amendments to the Act and evidence of the legislative intention behind the inclusion of that phrase. He writes (at page 20),
Given the context, I think that the significance of the word “meaningful” is to show that the legislature did not want to attach particular weight to the benefit to a child of any sort of relationship with a parent. In particular, it is clear that the Committee considered that it was generally important that the non-resident parent played an active role, being involved in various aspects of the child’s life, in making decisions about the child; the role of a parent, not a visitor. They wanted to get away from the idea that it is enough if the non-resident parent sees the child occasionally, perhaps takes the child to the movies or sporting events at the weekend, but takes no interest in the child’s education or development, and so on. In particular it is not enough that the non-resident parent just sees enough of the child to keep up appearances, or to satisfy the parent’s own needs, or even, perhaps to given the resident parents a break from time to time by doing some babysitting. The non-resident parents should be parenting.
[16] Chisholm, R., “The meaning of meaningful: musings on some key provisions of the Family Law Amendments of 2006” a paper prepared for the Queensland Family Law Residential, Gold Coast, August 2008.
In the Full Court decision of Moose & Moose [2008] FamCAFC 108 Boland J referred with approval to the decision of Brown J in Mazorski & Albright (2008) 37 Fam LR 518 and agreed with her Honour’s observations with respect to the words “meaningful relationship”:
“At paragraph 24 of her Honour’s reasons she sets out the dictionary definitions of “meaningful”, and then explains her conclusions on the effect of the term “meaningful relationship”. I respectfully agree with her Honour’s conclusions at paragraph 26 where she says:
What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one. Quantitive concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.
PARENTAL RESPONSIBILITY
The mother sought sole parental responsibility provided she kept the father informed of the major issues. The Independent Children’s Lawyer joined with her in that submission. The father submitted that parental responsibility should vest with the father at least with regard to how the child is informed of the father’s criminal convictions and illegal behaviour in regard to the child’s elder siblings and paternal aunts.
There is an issue about whether parental responsibility should be sole parental responsibility at the hands of the mother or parental responsibility as sought by the father that is that each parent has several parental responsibility.
Whether I had made an order that the father have face to face contact with the child or not, I would not have made an order for joint parental responsibility whether several or shared. The child is primarily in the care of the mother who has not been in any way criticised by the father with regard to her parenting except in so far as the mother objected to the father having face to face time with the child.
This is a case where the presumption does not arise bearing in mind the crimes to which the father has pleaded guilty and been sentenced and served time in prison.
The mother is entitled to continue with her role in properly parenting the child and she ought not to be forced into communication with a person who has committed such awful crimes against her elder children.
I have had regard to all of the matters of evidence referred to above and provided to the court and all of the factors under s60CC(2), (3), (4) and (4)(a) as set out below.
This child is entitled to have a functioning process to determine issues such as health, education, and residence. That cannot be done in any joint or mutual way. It can only be effectively undertaken by the mother and I do not intend to inhibit her good parenting of this child by imposing unnecessary obligations upon her which would not, in any event, be in the child’s best interests.
I will however require the mother to provide information to the father. This accords with the mother’s approach so far and the evidence she gave in her cross-examination.
There is no issue that the child should live with the mother and accordingly an order will be made in that regard. There is no issue that the child should receive letters and cards from the father, subject to the mother having the right to inspect and read those cards and not to forward on to the child those cards and letters that are inappropriate. She has adopted a sensible and sound approach in that regard so far and I have no reason to believe that she will not continue to do so.
The issue is whether the child should have any face to face time with the father. Further, in the event that I order face to face time with the father, whether it ought to be supervised permanently or lead to unsupervised time.
Let me say at the start that I will be making a finding that the child is at unacceptable risk of abuse by the father. I do not accept the father’s expressions of remorse nor do I accept that he is no longer a risk to children. It is all too easy to admit events when he is caught and to say that he will accept the guidance and direction of psychiatrists and/or psychologists. What is of concern is that whilst an adolescent and young man the father sexually abused each of his three sisters, one of whom he abused over a period of between three and five years.
Some decade or more later the father then had responsibility for two other children. He sexually abused both of these children and in particular with regard to Helen he abused her over a period of a number of years. He abused her after the child had complained to her mother and the father had lied to the mother about the child’s complaints. There is no issue of fact in relation to these matters except as to the extent of the abuse and in terms of the number of years.
I am satisfied that the father presents an unacceptable risk, whether that be his own child or step children. He sexually abused his own sisters.
There is a risk to this child and I will not allow any unsupervised time between the father and the child at all. I would not structure orders with the view to a review as any supervision would need to continue until this child is eighteen.
In addition such is my concern about the risk to this child I intend to accede to the mother’s request to order that there be an injunction restraining the father from having any face to face contact with the child in any way until she attains the age of eighteen years. I raised this issue with counsel earlier in the trial and I received no closing submissions to the contrary.
DISCUSSION
This is a difficult case in that involves the question of whether there is any face to face time between the child and the father. As Warnick J said in Napier & Hepburn (2006) FLC 93-303:
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 provide a platform, for any future consideration of the family’s 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 illuminate paths by which a family (or a court making decisions for a family) might subsequently explore options for change.
I approve the comments made by Carmody J in W & G (2005) FLC 93-248:
45.Australian family law is unashamedly pro-contact. Consequently, this court will bend over backwards to establish or preserve a worthwhile relationship with the poorest of parents provided adequate protective measures can be put in place to prevent any relevant risks. This approach is based on the assumption that a father is much more than the worst thing he has ever done ( John Kani, playwright.)
When considering an application that a child spend no time with the father, Brown J said in the case of Holmen & Farley [2008] FamCA 197 :
….the need to protect the child from psychological and physical harm outweighs the consequences of the damage to that relationship arising from spending no time with him. …
The evidence in these proceedings is not that complex and there is no issue that the father had committed morally, ethically and legally reprehensible acts with regard to his three sisters, Helen and Mark. There is no issue of burden of proof in relation to those matters as it has not been put into issue.
It is clear that the approach in these proceedings is not about further punishing the father or vindicating the mother. It is a child-focussed process.
Counsel for the father submitted that the mother’s evidence was that she could “cope” should the child spend time with the father. In my view that is an unduly optimistic view of her evidence. In cross-examination in answering that proposition her evidence was to refer to the effect on Helen and Mark of their little sister going to see the man that had abused them; that in her view the situation was still raw, that it did not need to be brought up all the time, and that it would be in the back of their minds at all times. She said that there would be pressure on the child as to what she could or could not say. The mother made it clear in her evidence that she was significantly affected by the abuse of her children whilst under her care by someone she trusted. Her evidence was that she coped very badly with that but that she managed her parenting notwithstanding these difficulties. Her distress was evident in court.
The independent children’s lawyer submitted that the evidence before the court as to the effect on the child’s family unit of the father’s past actions and future time with the child, or the effect of any such time on the mother’s parenting capacity, was not of the requisite quality, cogency and exactitude so as to attract the line of reasoning contained in cases such as Re Andrew (1996) FLC 92-692 and A and A (1998) FLC 92-800. Counsel for the father adopted those submissions. It is not at such a level but it is significant. The question of time must be seen in the context of the effect of the abuse on the whole family unit. To that end the drawing made by child[17] is indicative of her views of the family, that is that the family unit is herself between her siblings and beside her mother.
[17] Exhibit ICL10
I am satisfied that the child had a good relationship with the father prior to the disclosures in September 2006. I accept that the child’s relationship with the father has been estranged since that time and I accept the evidence of the single expert in relation to the child’s connection with the father.
However this must be considered against the impact of the child in the context of her relationship with the mother and her siblings.
Section 60CC (2)(a)
(a)the benefit to the child of having a meaningful relationship with both of the child's parents; and
There is real question of whether there is a benefit in the child having a meaningful relationship with the father. This father is an important figure in the life the child. She reacted well to him when she saw him at the interview with the single expert. She greeted him, sat on his knee and they interacted relatively well, bearing in mind that they had not seen each other for a considerable period of time. The single expert recommends that there be face to face time.
Weighed against this must be the impact of the father’s crimes Mark and Helen and the child’s mother. Each time the father saw the child would cause disruption to the household which is presently calm and effective and would impact on the child’s relationship with her elder siblings and the mother.
The profound impact on the mother and children is seen through the evidence of Ms K, the comments of the Supreme Court judge and the statements made by the children to the police. The only kind of relationship the father could have with the child would be once per fortnight or once per month through a contact centre for a few hours. That could not amount to a meaningful relationship and any relationship would have to be considered offset against the impact on this family which has been so devastated by the crimes committed by the father.
The child’s relationship with the father has obviously suffered significantly as a consequence of the father’s actions in relation to which he was convicted and went to prison in 2006. For the reasons I have articulated earlier this is not a case where I would allow the child any unsupervised time with the father. Accordingly, the child’s time with the father (if that were the course I was to adopt) could only be supervised and would need to be carefully and closely supervised. Of course this does not limit it simply to Contact Centres but it does limit it to independent people who have a healthy scepticism about the father. The time could not be overnight (particularly when considering the father’s predilection for nocturnal visits to children).
The child is at school and accordingly any time is more likely than not to be part of the day one day per fortnight or one day per month. I am not satisfied that in the circumstances of this case, it would amount to a meaningful relationship of any significant benefit to the child.
Such an order would be a burden on the child particularly in terms of her close relationship with her mother and her elder siblings. Such an order would be more for the benefit of the father rather than the child. In coming to this conclusion I acknowledge the response of the child to the father when they met in the context of a report of the single expert but that must be tempered with the evidence of the mother as to the child’s reaction to letters and cards from the father. There is no doubt the child will feel somewhat sad at not having a “father” or father figure. But this concern must be offset against the broader concerns of her existing strong relationships within the family unit.
The single expert said that
one can’t conclude [Helen and Mark] will have problems if the child sees her father – you can’t draw that conclusion…short of having him shot he will remain in their conscious thoughts and feelings…I am not persuaded with stopping time between the child and the father will be protective of [Helen and Mark].
I do not accept that underlying fact, I find that Helen and Mark will have problems if the child sees the father and stopping time will be protective of them.
The single expert said
…[the father] is an important figure in her life. It is important that she have some dealings with him based on factual knowledge…reality is better to deal with than fantasy”
The orders I propose to put in place will allow the child some dealings with the father. The child may deal with the father in the sense of the fantasy as alluded to by the single expert, but this needs to be weighed against the impact on the home life which is the reality of the child. The single expert conceded that the child and Helen and possibly Mark would all need professional help (which they otherwise might not need) should the father see the child.
In terms of supervised time, I take judicial notice that the facilities at the Hobart Children’s Contact Service are not such as could offer indefinite supervised time. This was a submission made by counsel for the independent children’s lawyer and was not challenged by either party. In any event, I agree with the Full Court in B & B (1993) FLC 92-357 when it said at page 79780:
Supervised access may then be capable of being ordered for the time-limited purpose of re-establishing a relationship between the access parent and the children. Supervised access is not appropriate as a long term measure.
In terms of the nature of the relationship which existed in the past between the parents and the child, there is no issue, as I have said earlier, that the child had a close relationship with the father. That reduced in September 2006 and ceased on a face to face basis in December 2006. There is still a relationship in place although it is not perhaps as optimistic as considered by the single expert and not as insignificant as claimed by the mother.
The father has sought to be involved in the child’s life.
In terms of the attitude of the parent to the child’s primary carer and other significant persons in their lives, I have concerns about the father’s insensitivity in respect of Helen and Mark and his minimisation of his culpability in respect of those children. As to that aspect I have regard to the impact on Helen and Mark set out in the mother’s affidavit, set out in the victims’ impact statement attached to the affidavit of Ms K, the comments of the Supreme Court judge and the statements of the children themselves.
The father’s abuse of his sisters as an adolescent was something he knew was morally and legally wrong at the time. Subsequent to those events the father trained and qualified in community services and was registered (he has since been de-registered because of the convictions relating to the matters described in these reasons).
The father was aware of his obligations to children but notwithstanding those obligations sexually abused Helen over a period of years in a circumstance where he was in a position of trust with regard to her. He must have been intellectually aware that his behaviour was unacceptable at law; to the community; and to Helen. Helen wore underclothing; she put up her toys as a protective device and yet he continued with the behaviour. He continued with the behaviour and lied about it to the mother and I am satisfied stopped the behaviour because Helen was getting to an age where the father was at risk of being discovered.
The father’s abuse of Mark was not over a long period as it was of Helen but it was still a gross breach of trust. To add insult to injury the father suggested that Mark (who had been acting out) be moved away from the mother and live with his father. The father lied about the disclosures made by Mark. Yet in the context of this, the father in his letters and cards blamed others for keeping him away from the child.
The father has sexually abused five of the six children which have been close to him over the last twenty years or so.
In terms of the personal disposition of the parent in question I am satisfied he would be able to engage in a meaningful relationship with the child although there are some concerns in that regard, the minimisation of his culpability, his questioning of the child, all of which impact significantly in terms of his parenting.
The child’s view of the father is as set out in the single expert’s report and in her greeting of the father. She also has a close relationship with her siblings and her mother. The real challenge to the mother will be how to address the issue of the father’s sexual abuse of the child’s siblings and paternal aunts in a thoughtful and constructive way. It cannot be buried as the child already knows that the father has “broken the touching rule” and irrespective of what orders I put in place (whether they be supervised time or no time) questions will arise as to why that is in place.
Counsel for the independent children’s lawyer in his closing submissions noted that children’s matters are dealt with by Superior Courts and that they are amongst the most significant types of matters for adjudication. Counsel submitted that the promotion of a significant relationship between children and their parents is the cornerstone of our society and the severance of that relationship is one which society treats as a significant matter; that the ancient parens patriae jurisdiction reflects the importance society places upon the protection of its most vulnerable members, being children. This is apparent in the legislative imprimatur to ensure that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child.
Counsel for the father adopted these submissions.
This however must be subject to the need to protect children from physical abuse or psychological harm resulting from abuse or violence, and these are in fact the twin pillars of the legislation, as set out both as the first two objects and principles governing children’s matters in section 60B, and as the primary considerations for the court to consider when determining what is in a child’s best interests in section 60CC (d).
In terms of the risk of sexual abuse on an unsupervised basis, the counsel for the father conceded at the start that such an arrangement could not be put in place, and that what ought to happen is that there ought to be supervised time as recommended by the single expert (four hours a fortnight) but with some possibility of change into the future depending on the father’s treatment and reactions.
It was suggested that there it would not logically follow that the father would abuse his biological child after abusing his step children. That of course ignores the fact that the father has already abused his sisters who have a direct biological connection with him.
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
As I have indicated earlier I have found that the child would be at unacceptable risk of abuse if left in the unsupervised care of the father. I accept this child would not be at risk of physical abuse in the fully supervised care of the father as envisaged by him. The danger to the child is broader than this bearing in mind the child’s knowledge of the father having inappropriately broken the “touching rule” with her siblings and the dynamics of the family in terms of the impact on the mother and the children of the father’s behaviour. I accept that it was necessary for the child not only to change her school but to change her surname. School communities are small and I accept the evidence of the mother that, through no fault of her own, the knowledge of the father’s abuse of the child became common knowledge in the school area.
The constant reminder of the father on a fortnightly or monthly basis would impact on the elder children of the mother and would then come back and impact on the child. The evidence of the views of Helen and Mark are clear in that they cannot understand why someone who would cause such damage to them would be able to spend time with the child.
Section 60CC (3)
(a)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
The child has expressed no particular views to see the father or any particular views not to see him. She has interacted with him, apparently well at the one visit in late 2007 but otherwise does not express interest in seeing her father.
(b) the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child);
The child has a close and loving relationship with the mother and her elder siblings. At some levels the father is dismissive of this but I find it is a safe, secure and happy environment in which the child is growing up. The child is progressing well at school[18], despite the need to change her school and name as a result of the father’s abusive behaviour and convictions which were public knowledge at the child’s previous school.
[18] Affidavit of Ms N filed 29 July 2008.
The mother’s evidence was that she and the child still see the father’s sister Deborah, and that they “get together when we can.” She also said that the child saw her paternal grandparents whilst in prison and that the child received Christmas presents from them.
The child’s relationship with the father was clearly good up to September 2006 but has been diminished since that time. I reiterate the evidence of the single expert and that of the mother.
(c)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
The mother is clearly distraught and angry as a consequence of the assaults on her elder children. Notwithstanding this the mother takes her time to read cards and letters and provide most of those to the child. She encourages the child to respond or to draw a picture to send to her father. She does that in an appropriate and sensitive way and encourages the child to respond to the father. I accept her evidence in that regard.
The mother has arranged for school reports to be provided to the father and is prepared to continue to do so. She gave evidence, which I accept, that she kept the father informed of significant events affecting the child.
This willingness is of course tempered by the events to which I have referred to earlier. However, it is a mark of the child focused approach by the mother that she has adopted the steps that she has to date.
The father submits that the mother has not facilitated a relationship between him and the child save for passing on cards and presents. I do not accept that submission but I do accept the submission that the mother is, quite understandably, reluctant to facilitate the child spending time with the father. This can be seen the context of the mother’s concerns about the wellbeing of the child and broader family.
The father’s willingness and ability to promote the mother to the child must be comprehended in light of the contents of some of the cards sent by him to the child referred to earlier in these reasons. The father either intentionally or recklessly undermines the relationship between mother and child by insinuating in some of those cards that the mother is unfairly keeping him from seeing the child.
(d)the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
There will be an impact on the child of the separation from the father. I have considered the evidence of the single expert in that regard and the evidence of the father. That must be weighed up against the other evidence.
I accept that the child has a relationship with the father which is reflected in the report of the single expert.
The father’s submission is that long term supervised time is problematic and his evidence was that it would be unworkable. I accept his evidence in that regard.
The impact of the resumption of face to face time will be felt by the mother, Helen and Mark, and this will consequently impact upon the child.
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
The contact centre is not available for indefinite supervision and there will always need to be close supervision of the time the father would spend with the child. I reiterate the comments I have made elsewhere in these reasons.
(f) the capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
I have earlier dealt with the sexual abuse behaviour and convictions, the cards and letters sent by the father, the spiteful telephone messages and jogging past the mother’s home, I repeat those in terms of this factor. The evidence of the mother about the father’s temper and anger and controlling nature are also factors of which I have had regard. The evidence of the self centred nature of the father all reflect adversely upon his capacity to provide for the needs of the child.
The father acknowledges that limited supervised time is not in the child’s best interests.
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
Except as discussed above this is not a significant factor.
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i)the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)the likely impact any proposed parenting order under this Part will have on that right;
Not applicable.
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
In terms of the facts in this case I am satisfied that the mother has adopted clear child focused attitudes to the responsibility of parenthood, in many ways demonstrated by her approach in protecting the child after the father was charged and sentenced for the matters referred to earlier in these reasons.
The mother ought not to be criticised for the change of the child’s surname (which was not opposed by the father). This was done in a protective, careful way as was the change of school. The mother is unable to see the father in any positive light and, in oral evidence, railed against being “forced to sell” the father to the child. That approach is not centred with regard to the child but is centred in respect of her responsibility to all three children. It is in that context that in some cases the court must look.
The balance of the responsibilities of parenthood as between all children, including children from different relationships, must be a significant factor in reflecting attitudes of responsibility of parenthood.
In terms of the father his betrayal of trust of young children, albeit ceasing four to six years ago cannot be ignored. The father expressed to the single expert that he wanted to be “a family man”.[19] Whilst I accept that such is, or was, the father’s wish, I also accept the mother’s evidence that his anger, his conflict with Helen and Mark, and ultimately his criminal acts against them together had a devastating effect upon the family. His attitude to the responsibilities of step-parenthood was appalling.
[19] Dr S’s report 11 December 2006 page 2
The father was content to sexually abuse Helen over a period of years whilst at one stage his own daughter lay in the bunk below. He was content to send the child cards, some of which sought to minimise the fact that his own behaviour was keeping them apart and sought to shift the blame for that elsewhere. I do not doubt that he loves his daughter and that as submitted by his Counsel, she has if possible assumed an even greater significance in his life given the magnitude of what he has otherwise lost.
(k)any family violence order that applies to the child or a member of the child’s family, if:
(i)the order is a final order; or
(ii)the making of the order was contested by a person;
I have discussed this earlier in my reasons. The family violence order was imposed subsequent to the messages left by the father on the mother’s telephone messagebank service.
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
I have considered in the light of all of the evidence the orders which I propose in the context of avoiding future litigation. There must be a time for the litigation between these parents to end. I make these comments having regard to the provisions of s 69ZX(3) of the Act which provide that in child related proceedings commenced after 1 July 2006 any recommendation, finding, decision or judgment of any court, person or body of the kind mentioned are admissible as evidence.
The orders that I propose to make that there be no face to face time between the child and the father are not intended to be an invitation to the father to recommence litigation in a year or so.
I have made the findings in relation sexual abuse of his sisters and Helen and Mark particularly clear in this case, in an effort to dissuade the father from commencing such proceedings and also so that if I am unsuccessful in that regard so that a judicial officer who subsequently hears that application will be well aware of my recommendations, findings and decisions. This is not intended to restrict the discretion of the court determining any future application/s.
Section 60CC (4) of the Act
(4) Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child's parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child's parents:
(a) has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long‑term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child; and
(b) has facilitated, or failed to facilitate, the other parent:
(i) participating in making decisions about major long‑term issues in relation to the child; and
(ii) spending time with the child; and
(iii) communicating with the child; and
(c) has fulfilled, or failed to fulfil, the parent's obligation to maintain the child.
(4A) If the child's parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.
I have considered the factors under s60CC (4) & (4A) of the Act and reiterate my previous findings regarding each party’s discharge of the responsibilities of parenthood and their facilitation of each other’s parenting. In particular I have had regard to the events which have happened and the circumstances that have existed since the parties’ separation in September 2006. I.
I have not again in this part of my reasons recited all of the facts and circumstances, and I do not believe that is necessary. I have had regard to all of the facts and circumstances provided in the evidence and the findings made and inferences drawn.
CONCLUSION
In the factual circumstances of this case the father could not be allowed unsupervised time with the child. The remaining options are some limited face to face time, no face to face time or irregular parent identity time.
Regular face to face time for an indefinite period is not reasonably available over an indefinite period of time through a contact centre. However, I take judicial notice that there may be some commercial provider who would be able to meet this need for both face to face time and/or identity time. Properly constructed orders and appropriate supervision would ensure that the child would not be at risk of physical abuse or inappropriate remarks in such a supervised environment.
The next question is whether such face to face time would continue a meaningful relationship between the child and the father. There is a positive relationship between the child and the father which had endured the turmoil of the last two years or so. To that end I find that the sound and child centred parenting by the mother of the child, notwithstanding the awful circumstances in which she found her family has contributed to this. The mother has not demonised the father to the child. The child’s elder siblings have likewise protected the child from the emotional carnage wrought upon the family by the father’s behaviour.
I accept the evidence of the single expert of the meeting between the child and the father and that it is indicative of the child’s meaningful relationship with the father. It is in the circumstances of this case that such relationship can not progress further and, if it were to be a few hours a fortnight, would be of a very limited nature.
Is such face to face time a benefit to the child? I have come to the conclusion that it is not. In reaching that conclusion I have considered the limited nature of the relationship and the inevitability that it would not and should not develop to unsupervised time. The child’s mother and siblings have protected the child from the effects of the abuse notwithstanding their own emotional and psychological injuries. For there to be face to face time of that type would mean bringing the offender of the abuse into the day to day lives of this family, each fortnight (or even at longer periods) there would be a preparation and anticipation of each face to face meeting and after each visit there would be conversation or some form of acknowledgement that it occurred.
When considering the evidence of the impact of the abuse on the mother, Helen and Mark I conclude there must be a flow on of such impact, albeit not necessarily overt or conscious, if face to face time is put in place.
As such I disagree with the recommendations of the single expert that there should be face to face time and the submissions of the father and the independent children’s lawyer to that end.
The father’s evidence is seriously impeached and the recommendation of the single expert must, in part at least, depend upon the history provided by the father. His behaviour as distinct from his words is different to the history he gave the single expert (in that he is remorseful and has taken control of his weaknesses) and his behaviour discussed in these reasons is different to his rhetoric.
The father’s crimes and the behaviour which he displayed to Helen, Mark and his sisters predicate against him associating with the child. Since his release from prison his assertions of change have a hollow ring to them.
As such when balancing the existing relationship of the child to the father and the benefit of the existing relationships between the child and her mother and elder siblings I am not satisfied that it is in the best interests of the child to have face to face time with the father and I will not order face to face time and I will prevent the father having time with the child except by letters and cards.
I certify that the preceding two hundred and thirteen (213) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin
Associate:
Date: 1 October 2008
Key Legal Topics
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Family Law
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Evidence
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Expert Evidence
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