Highsmith and Kelly (No 2)

FAMILY COURT OF AUSTRALIA

HIGHSMITH & KELLY (NO. 2)

[2018] FamCA 280

FAMILY LAW – CHILDREN – PARENTING – where father of two children is convicted of incest relating to his step-daughter – where he seeks contact with his children – where the evidence is limited but enough to find an adverse psychological impact on the children creates an unacceptable risk.

Family Law Act 1975 (Cth)

M v M (1988) FLC 92-979
R v Frith [1914] VLR 658

APPLICANT:

Mr Highsmith

RESPONDENT:

Ms Kelly

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER:

MLC

5183

2016

DATE DELIVERED:

27 April 2018

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Cronin J

HEARING DATE:

18 April 2018

REPRESENTATION

THE APPLICANT:

In Person

COUNSEL FOR THE RESPONDENT:

Mr Lethlean

SOLICITOR FOR THE RESPONDENT:

Samantha Ward Pty

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Goldsworthy

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Geelong Family Lawyers

Orders

The father’s initiating application for parenting orders (as amended) including any alterations to the orders proposed by his outline of case document filed in April 2018 is dismissed.
The mother’s response filed 17 August 2016 (and to the extent amended by her outline of case document filed 9 April 2018) is otherwise dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Highsmith & Kelly (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 5183 of 2016

Mr Highsmith

Applicant

And

Ms Kelly

Respondent

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

In 2013, Mr Highsmith (“the father”) was found guilty of two counts of incest. He was convicted by the trial judge and sentenced to ten years imprisonment with an order that he not be eligible for parole for eight years. Against both conviction and sentence, the father appealed. In 2014, the father’s appeal against conviction was dismissed but, upon the Crown conceding that the sentence had been manifestly excessive, resentenced him to seven years imprisonment with a non-parole period of five years. The victim, the subject of the incest, was the father’s step-daughter. The conduct which gave rise to the criminal charges occurred between the victim’s 12^th and 16^th birthdays.
Ms Kelly is the victim’s mother. She and the father commenced living together in 1996 and married in 2010. From their union, B and C were born. They are now 13 years and 11 years respectively. The present proceedings in this court are about what, if any, contact and communication should occur between the father and those two children.
Until sometime around 2014, the mother supported the father in his protestations of innocence. It is a sad story that needs to be considered in context because of the concession by the father that his conduct “ripped apart” the entire family. He denies the specific conduct that gave rise to the incest charges but concedes he failed as an adult to prevent what occurred. He says he is rehabilitated and has undertaken a number of courses. One course said to be for a registered sex offender says that he is not a risk to children. He wants to have a relationship with B and C notwithstanding there has been no such relationship now for almost four years.
The mother opposes any sort of contact, face to face or electronically and resists orders being made that would permit the father to send cards, letters and presents. She is strident in her criticism of the father and was particularly distressed voicing her objection about being cross-examined by the father. He sought to ask whether, and if so why, she had changed her position on him having a relationship with the two children. In my view, his questions were relevant, appropriate and sensitive.
An Independent Children’s Lawyer had been appointed by the court. She promoted orders that would see limited telephone contact between the children and the father under supervision as well as the father being permitted to send written communications to them.
The resolution of this case has not been made easier by the fact that it commenced in the Federal Circuit Court in 2016 and had a number of hearings on circuit before being transferred to this court in February 2017. It was not helped that matters did not progress quickly in this court either. The final hearing in April 2018 was made more difficult by the father not being eligible for legal representation, having to prepare all of his handwritten material himself and not having access to unlimited resources because of being in prison. It was further made difficult by a paucity of evidence from the mother and little to no focus by anyone on what actually happened to the victim and how the community, through its sentencing processes of the criminal court, viewed the father’s conduct. Sentencing remarks and the appeal court judgment were not provided despite being requested and it was only through comity principles between courts that I was able to get access to that material. Early discussions between counsel for the mother and the Bench elicited a proper concession that he did not know how to cross-examine the father on “the events that put him in prison” because no such detail had been provided to him. He conceded he had “mere instructions” about what the children might say about their views and he indicated that on his instructions, the children had not seen anyone “independent” in a long time. As it transpired, that was not entirely correct as the mother would have known, because the children had recently spoken to the Independent Children’s Lawyer. No endeavour had been made to put their current views into evidence nor had any attempt been made to indicate what psychological assistance they had been offered subsequent to the literal disappearance of their father when he was imprisoned.
All of this led to counsel for the mother, supported by counsel for the Independent Children’s Lawyer, seeking to adjourn the matter to enable these steps to be undertaken. A directions hearing at which both the Independent Children’s Lawyer and the mother had been represented had occurred only three months before, yet it was only on the morning of the court that this discussion began to take place. That was totally unsatisfactory. The father opposed an adjournment despite having been warned that his own material was limited (and for that he could be hardly criticised having regard to what I have earlier said about his handicaps) but he pleaded with the court to proceed on the basis that he had waited years for this hearing. Whilst the court expects better from its practitioners, these children too have a right to get on with their lives for the limited period left in their childhood. For that reason, and with the customary warning that the court could only deal with the evidence it had before it, and armed with the material provided by the Supreme Court of Victoria, I decided it was proper for the matter to proceed.
Having heard, and read, the evidence, in my view, it would not be proper to make orders of the nature proposed by the Independent Children’s Lawyer or the father.
The only order sought by the mother was for a dismissal of the father’s application.
The proposals of the parties do not restrict the powers of the court to make what orders it considers are in the best interests of children but on the basis that the mother did not seek orders at all other than a dismissal, she obviously intended to convey to the court that it was not necessary for questions of parental responsibility or other parenting matters to be determined from her perspective. In discussions which will be self-evident in the transcript, I pointed to all of the difficulties for the future of these children should the father bring another application upon his release from prison.
In fairness to counsel for the mother who had little to work with, his application for an adjournment was premised on not only the provision of proper information to the court, but he indicated that matters associated with parenting orders (s 64B) could be met by what he described as “a s 11F type arrangement or if not, an updated family report” to give effect to what was going on in the minds of the children and what effect, if any, they were experiencing. He suggested that the father could do a “psycho-sexual” assessment and “put something more probative for himself”. It could not therefore be said that what was really needed in this case was not considered but in the end, I ruled that an adjournment was not appropriate as I had little confidence based on what had taken place over the last two years that any of this information might assist working out what these children needed. It was certainly the father’s position that he did not need to undertake the suggestions of the mother’s counsel because he had already done what was required of him.
With those frustrations aired, I proceeded with the trial. The reasons that follow set out why it is not appropriate to make an order of the nature proposed by the father or the Independent Children’s Lawyer.

What evidence did the court have?

The father was the applicant. In a handwritten outline of case document he relied on a number of pieces of paper and articles which, having read them, do not assist this court in dealing with any of the matters required to be considered in Part VII of the Family Law Act 1975 (Cth) (“the Act”). He did rely however on his affidavit filed on 14 February 2018 and an affidavit that he filed in May 2016. In respect of the latter, a cursory examination will show that it also does not assist. Its purpose in this trial was to show that the mother’s present position of rejecting any relationship is inconsistent with what she said in 2016. It led to the father making a final submission that the mother gave inconsistent evidence, if not untruthful evidence, and that was relevant to the question of his pursuit of an order to get his children into counselling.
The nub of the father’s argument was that between the time he was charged by police and even when he first went into prison, the mother supported his denials. He continued to live with the two children (his step-daughter having left the home) and there was never any suggestion of impropriety on his part with those children. Even in prison, there was communication with the children but then one day, the mother unilaterally ceased that contact by instructing the prison that in respect of his entitlements to make phone calls, hers’ was not a number that he was permitted. He pointed to the fact that in the mother’s earlier affidavits in the Federal Circuit Court, she had deposed the following:
[11]After careful consideration on receiving advice from an appropriate qualified counsellors (sic) I decided that it was appropriate that my two younger children should have some knowledge of why their father was no longer living at home and why he was in prison.
When the mother was questioned about who these counsellors were, she said she could not remember. My understanding of her evidence is that the only counselling these children have had has been with their general medical practitioner who has now told the mother that they no longer need to see him but can do so if required. The mother’s 2016 affidavit was drawn by the same lawyers who presently appear for her. In her trial affidavit, the mother said:
[11]Subsequent to me accepting that he was rightly convicted of these crimes I sought professional advice and also discussed the question of what information I should give to my two younger children with general practitioner (sic). I was advised and I accepted that it was appropriate for the children to have knowledge of why their father was no longer living at home and why he was in prison.
The mother’s trial affidavit ran to 20 paragraphs over two pages and was as vague as it was incomplete. As I earlier mentioned, the mother was distressed by being cross-examined particularly in regard to why she was being questioned at all having regard to the fact that the father was the perpetrator of the crimes yet the example just shown above indicates that his inquiry was quite proper. He was calm, reflective and polite. He wanted to know, and quite frankly so did the court, what it was that had changed from the mother’s perspective such that she had now decided that he should be excluded entirely from the children’s lives.
This dilemma is apparent when one examines the family report prepared by family consultant Ms D who is a social worker. She was engaged by the Federal Circuit Court in August 2016 to prepare a family report. She encouraged the continuation of contact between the father and the children on the basis that it was evident to her that they were worried about not just the sudden absence of their father without any in depth explanation, but more importantly, whether he was safe.
With the father’s imprisonment and unilateral action by the mother as earlier mentioned, I considered the father’s questions were appropriate. A cursory reading of the mother’s trial affidavit gave no indication of what was happening in the children’s lives other than the following:
[9]During the course of our relationship the applicant was a good father to the children and an excellent breadwinner. I generally had no complaints about our relationship. However what I now know is meant for a significant part of the time we were living together he was living a lie and his actions impacted to a very large extent a relationship with my daughter (his step-daughter). Initially after his conviction I did endeavour to keep in touch with him and enable two younger children to speak to him by telephone on occasions. The contact was intermittent. (as per the affidavit).
Leaving aside grammatical construction, little information is given as to how the children were coping. The mother went on to say about what the children had told the family report writer in 2016:
[13]Whilst at the time when the family report was being prepared the children did not have full knowledge of the situation they now do so and do not want to have anything to do with their father nor do they want him to contact their school or in any way interfere with their lives.
[14]While I indicated to the report writer that they may be prepared to speak to him by telephone they no longer wish to do so.
I do not intend by this focus to be critical of the mother as she was represented by lawyers but it ought to be obvious that the paragraphs just quoted give no indication as to what, if any, changes have occurred subsequent to August 2016 when the children spoke to the family report writer nor what knowledge these children now have as to what occurred to their father and why. It is therefore unfortunate that I have to put into context what did happen and the following details were drawn from the appeal judgment.
Initially, the father was charged with seven counts of incest and two counts of committing an indecent act with a child under 16 years. At trial, the judge directed the jury to enter verdicts of not guilty on the two indecent act charges leaving the seven incest charges to the jury. The jury returned not guilty verdicts on five of those charges and unanimous guilty verdicts on the two upon which the father was convicted and against which he appealed.
It is not controversial that in an endeavour to prove its case beyond reasonable doubt, the Crown presented evidence of uncharged acts of a sexual nature between the father and his step-daughter. It is unnecessary for me to detail any of those acts nor indeed the acts upon which the jury found him guilty. However, a number of things add to the confusion. First, the father did not give evidence before the jury. That was his right. The mother did give evidence to the jury on behalf of the father not only supporting him but denying impropriety on his behalf. Apparently, upon finding out that something had occurred, the mother believed what the father told her. That led to her own daughter leaving the family home. It is the mother’s evidence before me that having accepted the father’s guilt, she has reconciled her relationship with her daughter and there is now a good relationship between the two children and their half-sister.
It is significant that in giving evidence to the jury, the mother denied a number of facts asserted by her daughter which were said by the Crown to be corroborative of the offences. Before me, the mother maintained that the evidence she gave to the jury was truthful. All of that adds to the confusion.
Before this court, the mother was asked by the father at what point had she changed her mind about his position of guilt. She said that it was up to or around his appeal but until then, she relied entirely upon what he had told her. It appears he convinced her by his answers, the most fundamental of which was, that her daughter was the “manipulator”. She said that subsequent to her daughter leaving the home, she had been unable to contact her and that is hardly surprising having regard to the position that had then been adopted by prosecution authorities. The use of the word “manipulator” adds to the dilemma here because the father’s evidence is that at no stage did any sexual activity occur that he initiated and by inference, the myriad of charged and uncharged acts were all initiated by the step-daughter. The mother therefore knew what the allegations were throughout the period pending her change of mind. The conflict which faced the jury can be seen from the judgment as follows:
[45]Generally, whilst the (step-daughter) admitted that she had initiated sexual encounters from time to time and that there had been behaviour by her such as “flashing” and rubbing under the table, she denied that this was something done without the (father’s) active participation.
In giving evidence before this court, the father maintained his denials that he had activated any sexual activity and his concession as to his guilt lay in the fact that he, as an adult, had not stopped what his step-child was doing. The jury rejected that assertion. So too, the appeal court rejected that by finding that the verdict was open on the evidence. They particularly relied upon what was described as a “pretext” telephone call which had been set up by the police for the step-daughter to speak to the father and his vague responses were accepted by the court as being sufficient admissions of guilt. The court pointed to one specific exchange which is relevant to the credibility of the father in this court. It reads as follows:
[26]One exchange was as follows:
[The step daughter]: So we never had sex? Is that what you’re saying?
[The father]: Not, not properly, no.
It is not the function of this court to decide the father’s guilt or innocence but to focus on what is in the best interests of these children (M v M (1988) FLC 92-979). However, the problem here is to examine the connection between the father’s conduct and the ultimate best interests of the children. The fact that he was convicted and remains a registered sex offender, is but part of the evidentiary process that the court must examine within the statutory confines of Part VII of the Act. Section 69ZX(3) of the Act provides that this court may in child-related proceedings adopt any recommendation, finding, decision or judgment of any court arising from any other proceedings such as the Victorian courts to which I have already referred. That judgment is therefore important.

In essence, the issue is whether or not there is an unacceptable risk of harm (in its various forms) to the children.

The outlines

By the orders I made on 23 January 2018, I directed the parties to file an outline as to the issues in dispute.
The father’s outline was a synopsis drawn from the family report and in particular, observed that it was considered important for all children’s development of an intact sense of self as well as emotional and psychological health to have ongoing contact with their parents. He submitted that it was his opinion and wish that the children receive counselling:
As a result of the negative impact that firstly, their father’s incarceration, and secondly, their loss of contact with him has had on them.
The mother’s outline of case document simply said that the issue for consideration was whether the children should spend time with, and communicate with, the applicant and then went on under the heading of “Parental Responsibility” to deal with ss 65DA, 65DAA and 65CC. Leaving aside the obvious error in the last provision (presumably referring to s 60CC) none of these matters were canvassed by the mother’s evidence. The mother’s outline of argument was therefore of no assistance.
The outline prepared by the Independent Children’s Lawyer dealt with issues of parental responsibility when the mother was not seeking any such orders. The outline went on to say:
The father has been convicted of incest with respect to his step-daughter. The Independent Children’s Lawyer has inspected the material produced by Victoria Police pursuant to subpoenae issued in this matter, as to the nature of the allegations made against the father, the police investigations into same, and the outcome of the criminal charges against the father.
It ought be obvious from what I have earlier said that some of that material could hardly be relevant and may even be misleading if it was not the material accepted by the jury and indeed considered by the appeal court.
The Independent Children’s Lawyer’s outline went on to say that she understood that the father maintained his assertion of innocence and that he was supported by the paternal family. The support of his family was not relevant because of the fact that they were not parties to the proceedings and certainly not seeking to be involved. Otherwise, there was no serious attempt by the Independent Children’s Lawyer to grapple with the issue that the court had to decide.

The legal consideration

The power to make a parenting order lies in s 65D(1) of the Act. In essence, the court may (subject to certain requirements) make such parenting order as it thinks proper.
Section 61DA provides that when making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the parents to have equal shared parental responsibility. That would only be necessary here if I was to make a parenting order. The father certainly promotes such an order as does the Independent Children’s Lawyer whilst the mother simply seeks a dismissal of the father’s application. For the reasons that follow, I do not intend to make a parenting order but rather to simply dismiss the father’s application. It is therefore not necessary to deal with the presumption.
However, even if I am wrong about the issue just mentioned, s 61DA provides that the presumption does not apply if there are reasonable grounds to believe that a parent of a step-child has engaged in abuse of a child who was a member of the parents’ family at the relevant time. Here, I have the protestations of the father that he had not perpetrated abuse of his step-daughter despite the convictions of incest to which I have referred. He admits that he acted inappropriately as a parent and as best I can determine, he concedes that he watched that child masturbate or on one occasion, attempt to masturbate him. Whatever occurred, I am satisfied that the presumption in s 61DA does not apply because there is a reasonable ground here to believe that the father has engaged in abuse of a child who was a member of the family.
The mother does not seek orders for parental responsibility as she could have. Section 64B of the Act provides that the court may make one or more of the following orders:
(2)A parenting order may deal with one or more of the following:
(a)the person or persons with whom a child is to live;
(b)the time a child is to spend with another person or other persons;
(c)the allocation of parental responsibility for a child;
(d)if 2 or more persons are to share parental responsibility for a child--the form of consultations those persons are to have with one another about decisions to be made in the exercise of that responsibility;
(e)the communication a child is to have with another person or other persons;
(f)maintenance of a child;
(g)the steps to be taken before an application is made to a court for a variation of the order to take account of the changing needs or circumstances of:
(i)a child to whom the order relates; or

(ii)the parties to the proceedings in which the order is made;

(h) the process to be used for resolving disputes about the terms or operation of the order;

(i)any aspect of the care, welfare or development of the child or any other aspect of parental responsibility for a child.

Absent any order, the provisions of s 61C apply and each of the parents has parental responsibility until the children turn 18 years of age. The mother seems content with that arrangement and there is no reason for the court to interfere as the father does not seek to be so involved.
As the mother has sought a dismissal of the father’s application, the appropriateness of his proposals, or those of the Independent Children’s Lawyer, has to be contemplated in the light of the provisions of s 60CA of the Act. That provision says:
Child's best interests paramount consideration in making a parenting order
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.
It will be apparent that it is the proposed parenting orders that must be in the best interests of the child or children.
Section 60CC( 1) provides that in determining what is in the best interests of a child, (in other words whether the proposed order is in the best interests of a child), the court must consider the matters in s 60CC(2) and (3).
The best interest principles are therefore contemplated as the primary considerations (s 60CC(2)) and the additional considerations in s 60CC(3).
Section 60CC(2) provides:
(2) The primary considerations are:
(a)the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Importantly, s 60CC(2A) which commenced in June 2012, reads as follows:
(2A)In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
The Act directs that whilst it might be seen to be of benefit to children to have a meaningful relationship with both parents, if that consideration conflicts with their protection from physical or psychological harm being subjected to abuse, neglect or family violence, their protection must prevail.
The psychological harm to which the section refers is quite specific. Section 4 of the Act provides that abuse in relation to a child means:
(a)an assault, including a sexual assault, of the child; or
(b)a person (the first person ) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is unequal power in the relationship between the child and the first person; or
(c)causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or
(d)serious neglect of the child.
What is being contemplated by the court is whether these children face an unacceptable risk of exposure to sexual activity or in the mother’s words, the grooming by the father. Section 60CC(2)(b) also refers to exposure to or subjecting a child to family violence. Family violence is defined in s 4AB(1) and it provides:
(1)For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member ), or causes the family member to be fearful.
(2)Examples of behaviour that may constitute family violence include (but are not limited to):
(a)      an assault; or
(b)      a sexual assault or other sexually abusive behaviour; or
(c)      stalking; or
(d)      repeated derogatory taunts; or
(e)      intentionally damaging or destroying property; or
(f)       intentionally causing death or injury to an animal; or
(g)unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
(h)unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
(i)preventing the family member from making or keeping connections with his or her family, friends or culture; or
(j)unlawfully depriving the family member, or any member of the family member's family, of his or her liberty.
(3)For the purposes of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence (my emphasis).
(4)Examples of situations that may constitute a child being exposed to family violence include (but are not limited to) the child:
(a)overhearing threats of death or personal injury by a member of the child's family towards another member of the child's family; or
(b)seeing or hearing an assault of a member of the child's family by another member of the child's family; or
(c)comforting or providing assistance to a member of the child's family who has been assaulted by another member of the child's family; or
(d)cleaning up a site after a member of the child's family has intentionally damaged property of another member of the child's family; or
(e)being present when police or ambulance officers attend an incident involving the assault of a member of the child's family by another member of the child's family.
It does not follow that just because the father has a conviction for incest with his step-daughter that he is automatically disqualified from spending time with his own children.
The relevance of this discussion about primary considerations lies in the fact that children who are not placed in that position as defined above in s 60CC(2)(b) should have the benefit of a meaningful relationship with both parents. That can be seen in the objects and the principles of the Act. Section 60B(1) provides that the objects are to ensure that the best interests of children are met by:
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
I am satisfied that the children are aware of the sexual abuse penetrated on their half-sister and despite the father’s protestations of innocence, the jury’s verdict and the court’s imposition of a conviction and sentence, it is now a fact that the children are aware of his abuse of a child who was a member of their family. Section 60CC(2A) applies. Notwithstanding that finding, s 60B(1)(a) requires the court to ensure wherever possible that the children 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 having regard to the father’s imprisonment, his role must be minimal and certainly under supervision if for no other reason than to ensure that the children are not exposed to the emotional and psychological harm of being involved in discussions about who was right or who was wrong, who was truthful and who was not. They now have exposure to their (adult) half-sister. The question is whether or not there is an unacceptable risk of harm to the children by virtue of findings of fact in relation to the additional considerations in s 60CC(3).

The evidence of the family consultant

As a result of an order of the Federal Circuit Court, the parties attended upon Ms D. Ms D’s qualifications and experience were not challenged. In 2016, she interviewed all of the parties and both of the children. At that time, the father had lost all avenues of appeal but he told the family consultant that he did not consider himself to be a risk to the safety of the children. He made the point that these were his biological children and he loved them. In the words of the family consultant, he pressed the point:
There had never been any accusations that he was a risk to his own children and that he had been assessed by the relevant authorities as a “low risk” of future harm to the point that he was not required to do a sexual offender program before a parole hearing.
The family consultant did not press the father about just what had happened with his step-daughter but it was clear that the father’s position was that he had done nothing wrong in relation to the incest charges. It was only in the hearing before me that his position became clearer.
The family consultant had also interviewed the paternal grandmother who originally had been a party to the proceedings seeking orders but had discontinued her application. She was supportive of her son but it is not clear whether she was then aware of the father’s own concession that he had acted irresponsibly as a parent.
The family consultant also interviewed the mother who at that stage advised that the children were progressing well and that the father had been good to them when they all lived together. This interview took place in November 2016 and, the mother said that the children had not been told of the specific charges against the father because she believed it was not appropriate. Their school knew of some of the matters and were supportive, enabling the children to settle in the period after their father was imprisoned. It was apparent to the family consultant that the children’s confusion was about the sudden disappearance of their father. Thus, by November 2016, it can be presumed that the children had been protected from the trauma of being told the truth. Their half-sister had also vanished and there is no evidence about the nature of that relationship. All of that has now changed. The mother reported that the children were not sure what to say to their father when telephone contact took place. With those scenarios, another change occurred for the children. The mother explained to the family consultant that she obtained legal advice because of the father’s “constant calls”. That advice apparently was that she should apply for a family violence order. Rather than do that, the mother placed the father on a list that meant that he could not call her. That meant the father then electronically disappeared.
When asked to describe the presentation of the children then, the mother described to the family consultant no concerns about their emotional or psychological welfare and she supported the wishes of the children to speak with their father if that is what they wanted.
A contentious issue in the trial related to the correspondence that the father had sent the children. The mother told the family consultant that all of the correspondence had remained in a box in her bedroom and the children were aware of it. She had informed them that they could read the letters whenever they wished to do so but at that point, they had not taken up that option.
In cross-examination, the father asked the mother about the letters and she said that the children were still aware of them. Some had been read but they distressed the children. There is no evidence to the contrary and there is no reason for me to doubt that.
The mother also told the family consultant that she had read some of the letters to understand them herself and they were predominantly about the father’s feelings of missing them and in her view, that would not interest the children. The mother was critical of the father in cross-examination because he had copied the same letter to both children rather than personalising them and in one case, sent a birthday card but missed another.
In a moment I shall turn to how the family consultant understood the position of the children but the mother told the family consultant that B had requested phone contact every three months and C had agreed to participate. When asked by the family consultant, the mother was supportive of the idea. Her preference however was that she or a friend of hers be present at the time of the calls and as an alternative, was supportive of the idea of a children’s contact centre supervising those calls.

The present position

What the family consultant was told by the mother has now changed. At the start of this year, the mother spoke to the children in the following context:
[12]Initially they were not aware of the full implications of what he had done but subsequently after my elder daughter and myself reconciled we went to visit her at her home in Queensland in January 2017. She had some discussions with the children and the question they had questioned me about what went on and now as they are much more mature fully realise the abnormality of what he did to our family and to their half sister (as appears in the affidavit).
[13]While at the time when the family report was being prepared the children did not have full knowledge of the situation they now do so and do not want to have anything to do with their father nor do they want him to contact their school or in any way interfere with their lives.
[14]While I indicated to the report writer that they may be prepared to speak to him by telephone they no longer wished so to do.

The children’s position in November 2016

When the family consultant interviewed the children, they were aged 11 nearly 12 and nine nearly 10 years of age.

The child B

B began the interview by saying that she did not want to see her father and when pressed by the family consultant about what it was like subsequent to the telephone calls stopping, she became distressed. She told the family consultant she was not sure what to think about it and in the view of the family consultant, B’s concern was whether her father was safe.
The family consultant opined that B’s relationship with her father impressed as continuing to be important in her life primarily because he had vanished and she still grieved for his absence.

The family consultant’s view now

When the family consultant gave evidence in this hearing, she understood what the mother’s position was that a conversation involving their half-sister had occurred. She opined that she would have recommended contact in August 2016 because it would have helped the children to understand that their father was safe. They were then trying to make sense of who their father was and particularly, at that time, what little they had been told.
In the context of the present evidence of the mother, the family consultant said it would be pure speculation to indicate whether the children’s perspective was different now. However, she opined that as the children came into their adolescent years and began to explore relationships, their identity and that of their parents, not to mention relationships, became important. They would begin to explore the fact that their father was not a good man as they had previously expected of him as a parent having been told that his behaviour towards their half-sister was bad. The family consultant opined that they might be angry or they may be confused because of their early childhood memories of the father (bearing in mind the complimentary views about their father given to this court by their mother prior to these crimes being committed). They would have to grapple with how their understanding did not fit with what happened and they would have difficulty making sense of it.
I asked the family consultant how children dealt with that dilemma and the family consultant’s response was:
Some have a really strong relationship with their mother and make sense of themselves through that. My concern with these children is their space to explore (the question) “but what if I like Dad?” What does that mean if he is capable of this other (behaviour)? I wasn’t sure if they actually had that back then. I would have to see them again to see if they have that, how they are dealing with it with their peer group, how that’s settling them in.
I raised with the family consultant the question of what would occur if contact orders were resurrected or counselling was to take place when things were going well for the children and their father had not been mentioned. The family consultant opined that it would bring tension to the situation and most importantly, tension for the mother. She rhetorically asked whether that tension was worth the disruption for the children and their development in the context of them doing extremely well.
As the children age and become more mature, the family consultant thought that much depended upon how they were supported and how issues that they raised were dealt with. She described the situation as complex. She observed that what could trigger some of their inquisitive nature was if their peers became more interested in what had happened. It does not take much imagination to understand that if the father wants to be involved in their lives and the children’s peers know that he is not, or more importantly, that he is currently in prison, all of that could have a destabilising effect upon these children in circumstances where things are very calm.

The child C

In August 2016 when the family consultant interviewed C, as soon as she was asked about contact with her father, she became teary. She described not wanting any contact with him because she was cross with him. She said however that she would feel “a little bit happy” if she did speak to him but she would be cross if a recommendation was made by the family consultant for a telephone call every three months.

The children together

The two children were seen together by the family consultant and they confirmed that they wanted to consider the possibility of telephone contact and how it would be implemented. They made clear they did not want to see their father in prison and when informed that they were able to indicate what they preferred, B responded to the family consultant that she would feel more comfortable to think about spending time with her father as she grew older. They were aware that their father was going to be in prison for at least a further two years.
The family consultant at [67] opined that both children were sufficiently old enough to have an informed opinion about the matter and that the mother had told them enough information bearing in mind their respective ages. The family consultant thought that they were sufficiently old enough to understand the impact of their wishes in relation to spending time with their father.
Importantly, the family consultant opined:
[69]Any contact between the children and their father must take into consideration the need to maintain their emotional and psychological wellbeing and reduce any further impact of harm as a result of too little or too much contact with (the father).
The family consultant considered it was important for the children’s development that they have ongoing contact with their parents “when it is safe to do so”. Their concern in 2016 was to know that their father was safe. I am satisfied that time has marched on and that situation has now changed.
The limited recommendations of the family consultant about how to deal with the children’s loss do not assist me because they were fundamentally around much younger children who needed to know that their father was safe as distinct from their present understanding that he has committed offences in relation to their half-sister with whom, in August 2016, they were estranged but now, they have the beginnings of a relationship or the resumption of something that has been long lost.
However, I find the information provided by the family consultant does provide some help despite the absence of an updated report on the basis that it is speculation as to what the children will go through in the next few years. I conclude that it is important not to destabilise their current welfare and development particularly in relation to their relationship with their mother upon whom they rely.
It is unfortunate that the mother chose not to provide any evidence as to her own psychological state and what impact, in terms of parenting capacity, orders would have on her. The only professional she seems to have attended has been her doctor but even that information was not made available to the court.
The father made clear that he did not want to distress the mother by his cross-examination and terminated it when it was obvious that the mother was distressed. That distress alone indicates that this is an extraordinarily sensitive subject for her and I accept that any orders requiring her cooperation and facilitation of time with the father including by telephone will have consequences that may put these children’s stability at risk. It is unfortunate that this case has been delayed and the children have settled into a routine without any involvement of their father but particularly now, having been made aware of what happened to their half-sister (even if it is untrue from the father’s perspective), I accept that they will most likely see him in a negative light. Nothing in the evidence of the mother indicates that the children are now worried about the absence of their father as they were in August 2016.

What is the importance of the criminal convictions?

The court has to examine the question of the risk of emotional or psychological harm if for no other reason than that the father has been out of the children’s lives for some time. In my view, there is a risk here. That risk is to the destabilisation of the children’s welfare dependence upon their mother. The question is whether that risk is unacceptable. The father’s conduct, as reflected in the sentencing, must heighten the anxiety of the court because of the very nature of the offences. Whether he perpetrated the precise acts which give rise to the offence of incest or not, a jury has convicted him. His concession both to the family consultant in 2016, and to this court now, is that he failed in his duty as a parent by not stopping what he saw as the conduct of his step-daughter. However, I do not accept that it is that simple.
Incest is an offence concerned with the exploitation of power within the family. (Crimes (Sexual Offences) Bill 1991 as introduced by the Victorian Attorney-General).
The statement about exploitation of power is not new. In 1914 in R v Frith [1914] VLR 658 A’Beckett ACJ said:
I think that in answering this question (about carnal knowledge about an accused of his step-daughter) we should consider the two evils contemplated by the Act – the abuse of authority incidental to parental or quasi-parental relations, and a sexual intercourse of the same man with a mother and daughter. These evils would be present whether the daughter was legitimate or illegitimate.
Whilst the language may be antiquated, the theme is clear that commencing a relationship with another parent who has a child and committing to that relationship means that one takes on the responsibilities of a parent by the very nature of the de facto or marriage relationship. To then be involved in any sexual activity even of the nature conceded by the father, amounts to an abuse of parental authority. The father does not walk away from the fact that he was the adult and therefore subordinated his perverted indulgences and created a gross breach of trust. This court has not been told anything of the damage arising from that conduct.
The provisions to which I have referred in the Act as set out in s 60B and s 60CC(2) concerning the protection of children, underpin the obligation of this court to ensure that there is no unacceptable risk of harm of the nature of what occurred here to the father’s step-child.
One of the fundamental considerations in s 60CC(3) is how parents have demonstrated their attitude to their children and to the responsibilities of parenthood. Having regard to what I have just said, the father’s behaviour towards a child of his family was the antithesis of responsible parenting. It is inadequate for him to say that he would never harm his own children. He was in that position even on his own concession in relation to his step-child.

The father’s cross-examination of the mother

The father spent some time cross-examining the mother about her position that had been adopted in correspondence in 2015 through to 2016. In my view, that is now irrelevant. Whatever position she adopted in 2016 until close enough to the determination of the father’s appeal, the mother is now stridently opposed to any type of relationship between him and the children particularly as she has now reconciled her differences with her daughter. The father’s cross-examination with the mother therefore does not assist me.

The proposals of the father

Each of the following proposals was put by the father in the context of being a rehabilitated man after four and a half years in the prison system. He pointed to all of the steps he had undertaken to help himself but the question ultimately has to be decided on the basis of whether or not the stable emotional state of these two children who are now aware of why he is in prison, should be put at risk.
He proposed that the children receive counselling “for as long as deemed necessary by appropriate counsellor”. Whilst that too seemed to be the position of the Independent Children’s Lawyer, nothing was put to the mother to indicate that she does not have the children’s interest at heart. Whilst the father seemed to reject that and raised doubt about her credibility, I reject that. I accept the mother’s evidence that she is presently taking the advice of her medical practitioner. It is perhaps unfortunate that the court did not have the benefit of that medical advice but then again, no-one else seemed to ask for it.
The father proposed that he have ongoing telephone contact with the children every two months and that be undertaken through E System. In my view, there is nothing in the evidence to indicate how that would benefit the children enjoy a meaningful relationship with their father. The same must he said in respect of the special occasions that he proposed.
The father also proposed that he send mail to the children through E System and that that system have the responsibility of deciding whether or not letters should be given to the children. The only basis behind such a proposal could be that the mother would not be seen as responsible enough to decide whether or not the children should have those pieces of correspondence. I find the mother has been responsible telling the children of the receipt of the father’s correspondence and that they have the opportunity to see that material if they desire. The absence of inquiry by the children subsequent to them learning of what their mother and half-sister have told them about the father’s predicament, leads me to believe that the mother is acting responsibly. There is no point therefore in asking a community support program to be the vetting agency when nothing indicates to me that the mother is not responsible.
In the same vein, the father sought orders that the children be able to write to him. The only point in such an order would be if it was directed to the mother requiring her to facilitate such a process. Having regard to the mother’s reaction to the very proceedings before the court, I consider that it would be inappropriate to order her to do something she considers puts the children at risk.
The father also sought an order that upon his release from prison, the children be given his phone number. It is anticipated that the father will be released later this year at which stage, the children will still be teenagers. It is not appropriate for this court to empower children to make decisions that should be made by responsible adults. In my view, the mother has shown that responsibility to date unlike the father because of his conduct as I have described it, and on that basis, I would not make that order.
The father sought to be authorised to obtain school reports and the like. The father currently enjoys parental responsibility as a matter of law and if he can make arrangements with the school, this Court should not be directing the principal to the contrary. In my view, the proposed order is not one that I ought to make because the school will decide whether or not providing him with information is inappropriate. The school will no doubt take into account that an entitlement to that information is an incident of parental responsibility. The mother did not seek to take that away.
The father also sought an order that the mother keep him informed of various details. He made clear that these were the things that a father interested in their children would want to know. I agree with that but if making an order against the mother would cause her angst, and I accept in this case it would, there can be no benefit to the children in that order. It is not the benefit to the adults that matters here but rather the children.
Section 60CA of the Act provides that when determining such a matter, the best interests of the children are the paramount consideration which means that they are not the only considerations. Accordingly, the court can take into account the benefit that parents want to receive from their children. In my view, pressing the mother to do things such as required of her by the father, would not benefit the children in any way and cause her angst.
The father also sought various injunctive orders in relation to “abusing, insulting, belittling, rebuking or otherwise denigrating the father or the father’s family in the presence or hearing of ‘the children’ or from permitting any other person to do so”. There is no evidence that supports that proposed order. The Independent Children’s Lawyer sought a similar order but counsel was unable to point to any evidence that would justify such an order being made against the mother. As I have earlier indicated all of the evidence points to the fact that she has acted responsibly.
Importantly, the father sought an order that the mother be restrained from discussing the proceedings with the children or permitting them to see any documents. The documents in this case are so sparse in terms of detail that such an order would be pointless. Having regard to what the children now know, restraining the mother from talking to them about it would not be responsible. These children have a right to know why their father is not in their lives and there is nothing that would enable me to find that the mother will adversely talk about these proceedings. I have little doubt that she has already spoken to the children about the criminal proceedings in the court and as the children grow older, they will no doubt inquisitively ask why their father is not part of their lives. It would be inappropriate to restrain the mother from telling them her version of events.
The father also sought orders that upon release from prison, the children determine what time they spend with him. Whether or not this was picked up by the father as a result of a recommendation from the family consultant is irrelevant. In my view this court does not empower children to make decisions that should fall to the responsible adults.
The father also sought an order that both he and the mother participate in counselling “if deemed necessary and appropriate”. In my view there is nothing to be gained in this case bearing in mind the mother’s position.

Unacceptable risk?

The mother’s evidence is that the father’s conduct towards her daughter amounted to “grooming”. There are presumably a number of views about what that means but from my perspective it raised the question of whether or not there is a risk to the children and whether it is unacceptable. There may not a risk of physical harm to the children presently because the father is incarcerated. However, having regard to the evidence of the family consultant, the emotional stability of the children is of fundamental importance as they now enter into adolescent years. It is that risk that I am now assessing.
The father’s strident view is that while he did the wrong thing, he denies the actions of the half-sister of the children. That raises the risk that either they or he, will raise that subject. There is no evidence from the father to indicate how he would deal with those sorts of problems and he distinguishes between his conduct towards his step-daughter and his own children. I disagree with that view and cannot distinguish between the roles he had. He had the same responsibility to all three children. He did not endeavour to stop it or raise it with the step-daughter’s mother. That showed his propensity to act irresponsibility towards children. I do not accept his argument that some authority has indicated that he does not need to attend a registered sex offender program. I do not necessarily accept either that a psychosexual report would have assisted me. Here, the issue must be determined on the basis of the evidence about his responsibility as a parent. He has failed to produce any evidence to satisfy me that he can be trusted to fulfil those responsibilities properly. The absence of the evidence here enables me to find that the risk of harm to these children or a psychological nature is high. In my view, that is unacceptable for these two children.

What is the benefit of a meaningful relationship?

Section 60CC(2)(a) refers to the fact that children are entitled to the benefits of a meaningful relationship with their parents. The unchallenged evidence is that these children are dependent upon their mother. Nothing in the father’s evidence indicates to me what he is proposing. He wants to be involved in the children’s lives and to give them advice and good example. At this stage, all of that would lead to the prospect of these children finding out details which they seem to be currently prepared to ignore. For example, they are aware of the existence of the correspondence from their father but have chosen not to be inquisitive about it. Nothing in the mother’s evidence has indicated to me that she is acting inappropriately in what she has told the children. Her unchallenged evidence is that now that a reconciliation with her daughter has occurred, the children have been told of what happened to their half-sister but all that the father could presumably say is what he has told the family consultant and indeed this court. Nothing in the evidence enables me to make a finding that there is any benefit to the children in having a meaningful relationship with their father at this stage. They presently do benefit from having a meaningful relationship with their mother and I would not be prepared to risk that at this time.

It is unnecessary for me to consider other matters in s 60CC of the Act because there is no evidence about those matters anyway.

Submissions of the Independent Children’s Lawyer

Ms Goldsworthy of counsel for the Independent Children’s Lawyer said that the Independent Children’s Lawyer’s proposal was predicated on the basis of stability for the children. In other words, if orders were to destabilise the children’s emotional welfare, they should not be made. Her submission was that with safeguards, the court could conclude that it could “travel down that track” of the nature of the proposals put by the Independent Children’s Lawyer but she then placed conditions on that saying that the court would need to monitor the mother’s reaction. In my view, that is not an appropriate course of action in this case because it does not bring to an end all of the proceedings between the parties.

Submission of the mother

Mr Lethlean of counsel for the mother indicated that this was a case of balancing interests between gain for the children and disturbance of them. In my view, there is not sufficient evidence to enable me to decipher what the children will receive if the tentative arrangements proposed by the father were put in place. I find the risk was much higher of destabilising the children’s present state of mind in their vulnerable teenage years.

Submission of the father

The father’s final submission was that the wife could not be relied upon to get counselling and therefore he wanted the proposed orders including telephone calls every two months. For the reasons I have set out, I reject his submission.

Conclusion

In due course, these children will work out whether or not they want their father in their lives. Nothing I have said above restricts the father from bringing another application if he can show that his circumstances have changed. As I earlier mentioned, he was warned about the paucity of evidence and not just his, but in my view, there is nothing here to enable me to find that these children would benefit from having a relationship of any nature with him at the moment. Quite the contrary, any orders would be most likely to be destructive of the children’s stability. That may happen anyway as speculated by the family consultant but the mother’s responsible attitude in protecting the children is something from which I can draw comfort.
These reasons will be hard for the father to accept bearing in mind his unwavering view that he has not acted such as to justify the convictions and sentences that he received. For the reasons that I have already set out, I cannot accept that the community would be prepared to adopt his view that what he did, even from his perspective, did not warrant condign criticism. I find in the circumstances that there is no evidence to enable me to find that these children will benefit from parenting orders and the father’s application must be dismissed.

I certify that the preceding one hundred and four (104) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 27 April 2018.

Associate:

Date: 27 April 2018

[2018] FamCA 280

27 April 2018

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