Houghton & Day
[2022] FedCFamC1F 175
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Houghton & Day [2022] FedCFamC1F 175
File number(s): BRC 5122 of 2017 Judgment of: BAUMANN J Date of judgment: 30 March 2022 Catchwords: FAMILY LAW – PARENTING – Discrete hearing as to whether the father poses an unacceptable risk of harm to the child by way of sexual abuse – Where the Court does not make such a finding – no prescribed orders made for the child to spend time with the father Legislation: Family Law Act 1975 (Cth), ss 60CC, 61DA, 65DAA Cases cited: Goode & Goode (2006) FLC 93-286 Division: Division 1 First Instance Number of paragraphs: 79 Dates of hearing: 2, 3, 4 March 2020 and 19 May 2020 Place: Brisbane Counsel for the Applicant: Mr Cameron Solicitor for the Applicant: Legal Aid Queensland Counsel for the Respondent: Ms Downes Solicitor for the Respondent: Aylward Game Solicitors Counsel for the Independent Children’s Lawyer: Mr George Solicitor for the Independent Children's Lawyer: Jenny Boulton Solicitor ORDERS
BRC 5122 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR HOUGHTON
Applicant
AND: MS DAY
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
BAUMANN J
DATE OF ORDER:
30 MARCH 2022
THE COURT ORDERS:
1.That the mother have sole parental responsibility in respect of all major long term issues for the child, X born 2013 (“the child”), with the mother to advise the father in writing of decisions relating to major long term issues affecting the child, within seven (7) days of such decision.
2.That the child live with the mother.
3.That the child spend time and communicate with the father as agreed between the parents.
4.That the mother keep the father informed of where the child lives and attends school.
5.That the mother advise the father of any emergency or serious medical condition involving the child as soon as possible but no later than twenty four (24) hours after the event.
6.That the parents shall keep each other informed at all times of their residential address, contact telephone numbers, an email address, and keep each other informed of any change within fourteen (14) days.
7.That the father being at liberty to send the child a card and gifts for Easter, Christmas and her birthday, and a letter no more frequently than once a month.
8.That the Independent Children’s Lawyer be discharged.
IT IS NOTED:
A.That these Orders are explained in the Reasons for Judgment of the Honourable Justice Baumann delivered 30 March 2022 which included a finding that the father did not pose a risk to the child of sexual abuse.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Houghton & Day has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BAUMANN J:
INTRODUCTION
X, now eight and a half years of age, is the only child of a somewhat ambivalent relationship between the Applicant father, Mr Houghton (aged 30 years) and the Respondent mother, Ms Day (aged 29 years).
The parties separated when X was approximately 12 months of age, and as these Reasons reflect, inconsistent time between the child and the father has been the child’s experience since April 2015. Both parties “blame” the other parent for this outcome, however allegations that the father sexually abused the child and had sexually abused other female children with a family connection, together with geographical and financial obstacles all played a part in time not occurring.
This is a difficult case, not, I accept, assisted by the delay in publishing these Reasons, for which the Court expresses its regret.
COMPETING PROPOSALS
The father’s orders set out in his case outline filed 26 February 2020 are Appendix One to these Reasons. They conceded that the child should live with the mother. Despite the slight variation in orders sought by the father during final submissions by his Counsel Mr Cameron urging the Court to make some day time contact orders for the balance of the year 2020, before X began school holiday contact with the father in Brisbane (where he now lives), at no time did the father suggest or propose that X should live with him.
The mother maintained by final oral submissions, delivered by her Counsel Ms Downes, that the child should live with her and spend no time with the father. She sought an order for sole parental responsibility, with the only communication between the father and the child being by the father being at liberty to send the child a card and gifts for Easter, Christmas and her birthday.
Mr George of Counsel, who represented the Independent Children’s Lawyer (“ICL”) in these proceedings, contended for a finding that the father poses an unacceptable risk to the child and, as a result, supported the mother’s proposed orders with even a cautious acceptance of the benefit the child might obtain from getting gifts or cards from the father three times a year.
PRINCIPLES
In all cases involving parenting orders, the child’s best interests are the Court’s paramount consideration. In determining those interests the Court must consider not only the objects of s 60B of the Family Law Act1975 (Cth) and the right of a child to have a meaningful relationship with all those people significant to them, but also the primary considerations under s 60CC(2) and the additional considerations under s 60CC(3) which will be analysed below to ensure that the order I propose will serve the best interests of the child.
To the extent possible, the Court should ensure orders made do not expose a party or a child to unacceptable risk of harm through family violence, abuse or neglect.
In certain circumstances the Court applies a statutory presumption that it is in the child’s best interests for parents to have equal shared parental responsibility (s 61DA(1)), which relates to making major decisions and not about the time a child spends with each parent.
In Goode & Goode (2006) FLC 93-286 the Full Court made it clear that the presumption that equal shared parental responsibility is in the best interests of the child (s 61DA) does not carry with it any presumption about time. The issue of equal time is dealt with in s 65DAA and “when the presumption is applied the first thing the Court must do is to consider when making an order whether it is consistent with the best interest of the child and reasonably practicable for the child to spend equal time with each of the parents. If equal time is not in the interest of the child or reasonably practicable the Court must go on to consider making an order whether it is consistent with the best interest of the child and reasonably practicable for the child to spend substantial and significant time with each of the parents”.
THE PARENTS
It is often said that the behaviour of children is contextual – with the parents providing the context. However, to understand the difficulties the Court has been confronted with in this case, an assessment of the parents is important.
The father
Between cohabitation in mid-2010 until he decided to move to Brisbane in 2015 when X was approximately 12 months of age, the father lived in far North Queensland around the D Town area and City E. He was 18 years of age at cohabitation. He would spend significant time in the home of Ms B (“Ms B”), the mother of eight children; the former sister-in-law of the mother and importantly the mother of a child named C (born 20 March 2005) who is X’s older cousin.
Counsel for the mother contends for a finding that the father is not honest in all respects. She points to the father’s evidence in three keys areas:
(a)About the “long kiss”;
(b)The “grinding” incident; and
(c)The father’s inability to recall being interviewed by Queensland Police after C’s s 93A interview.
I agree that having observed the father give evidence, some of his vagueness and inconsistency is concerning. These observations are similar to those recorded by the family report writer Ms F at paragraph 138 of the family report, where she opined that:
138.The father’s language, behaviour and presentation in the family report interviews was unusual. He appeared very vague when talking about the allegations, at times acting in a manner which may suggest that he had not previously heard the allegations. The father had not appeared to put any thought or consideration into his responses to the allegations raised, despite being aware of these allegations for the last two years.
I accept this opinion expressed and further note the father’s lack of candour about the family violence incidents with his current partner Ms G – and the circumstances arising from the Protection Order made on 30 October 2019 (see Exhibits 7, 8 and 10).
The father was competently represented in the preparation of his trial affidavit, and his lack of evidence on some critical issues (save for a mention of the allegation of “grinding” at paragraph 43(e)) damaged his credit. In my view, I treat the father’s evidence with some caution.
The mother
Ms F observed the mother at paragraph 140 as follows:
140.[Ms Day] presents as a very vulnerable woman. She has had a very prejudicial childhood, which has resulted in mental health issues. If the subpoenaed information is correct, [Ms Day]’s intellectual capacity of 64 may place her in the category of being intellectually impaired.
Ms F’s recommendation for the mother to be further assessed after the family report interviews in September 2018, was taken up by the ICL, who arranged for the mother to be assessed by consultant Psychiatrist Dr H on 31 July 2019, producing a report dated 16 August 2019. Although I will return in these Reasons to some of the opinions expressed by Dr H, the detailed history recorded by Dr H of the mother’s abuse as a child; psychiatric treatment and self-harming as a teenager meant, for the mother, an opinion was expressed that “anxiety and depressive symptoms combine with personality and intellectual factors to challenge her function in the role of parenting”, and further that:
[t]he diagnostic evaluation outlined above results in an increased risk of serious impairment for [Ms Day] to work towards developing a stable structured post separation parenting plan with [t]he [f]ather.
With this cautionary prognosis, which was very dependent on whether the mother “can be engaged in a process of therapy that she realises is working well for her’, it was a little disappointing that the mother had not engaged in any consistent therapy – rather telling the Court when she gave evidence in May 2020 that she had an appointment to see her General Practitioner with a view to getting a referral for a mental health plan practitioner. No evidence was produced to the Court of any personal therapeutic engagement.
Certainly the mother’s evidence revealed that she moved through stages of accepting the father’s denials; to being influenced by her family to question his veracity; to observing events concerning the father and X; to her ultimate position at the hearing before me of a deeply entrenched negative view of the father and a concrete belief that at least he did sexually abuse C and was inappropriate with X.
Dr H’s opinion is that the mother is unlikely to be able to “compartmentalise” her views or disguise them from the child. I agree with this opinion.
CONTEXTUAL CHRONOLOGY
Statements of fact which hereafter appear should be construed as findings of fact.
Having met at school, the parents, when about 18 years of age, began to cohabit. The relationship was marked by a number of separations and incidents of family violence, alleged by the mother, which I accept. However constant reconciliations permitted X being conceived during this ambivalent relationship, and being born in 2013 in City E.
After returning to D Town with the baby in October 2013, in late 2013 a complaint of historical sexual abuse against the father was made initially by Ms B to Police on 29 November 2013, but then confirmed to some extent by the complainant child C in a s 93A interview on 30 January 2014. The Police records (Exhibit 2) confirm, and I accept, the father was “afforded opportunity to participate in a formal record of interview to which he declined”.
However I am satisfied, despite the father’s vague evidence and initial denial, that he did speak to Police. The redacted relevant part of Exhibit 2 is as follows:
[Mr Houghton] detailed history of disputes between Mother…and his partner [Ms Day] and stated that…was obsessed he was a paedophile often accusing him to his face without basis. [Mr Houghton] stated it was his opinion that… was sexually abused herself and often spoke of this to gain attention often speaking about her own sexual abuse openly in front of her children. [Mr Houghton] refuted vehemently any inappropriate behaviour towards the child [C] [sic].
I am satisfied the person the father was referring to (whose name was redacted) was Ms B. I find the father’s decision to leave D Town and move to Brisbane was in part due to the number of allegations being discussed against the father. In a small town such gossip can easily be shared and, when an exchange of words erupted in late November 2013 (around the time Ms B made her complaint to Police) in the presence of the father’s father Mr K, emotions were certainly running high.
In circumstances where the ICL and the mother seek no finding that the father did sexually abuse X (a fact that the father strongly denies), I merely record at this stage that the mother says in February 2016, when the father returned to D Town to visit X, she observed a “long kiss’ and the “grinding incident”.
I record shortly the limited physical contact that the father had with X after he left D Town. Certainly time between the child and the father was made more difficult after the mother left D Town to move ultimately with her sister to J Town in regional New South Wales.
In May 2017, the father commenced proceedings in the Federal Circuit Court of Australia (as it was then known) and thereafter Orders were made for the child to spend supervised time with the father. The history of the litigation reveals that the mother regularly failed to appear at Court events, resulting in Judge Turner indicating on 6 December 2017 that she may issue a warrant to arrest the mother. The mother finally filed a Response to the father’s Initiating Application on 8 February 2018 – nearly nine months after being ordered to do so. She sought the father’s time be supervised, with leave to amend her final orders sought “upon completion of all investigations… of child sexual abuse”.
The allegations of child abuse having been made to the Court for the first time in February 2018, the proceedings were transferred to the Family Court of Australia (as it was then known) and designated as a Magellan matter.
When the matter first came into my docket in March 2019, it was apparent time was not occurring, and Orders were made on 26 March 2019; 28 May 2019 and 13 September 2019 for specific contact arrangements to take place in J Town – many of which did not occur.
After the trial began in March 2020, and significantly arising from evidence given by Ms B, in which she asserted effectively misbehaviour by Queensland Police in respect of C’s allegations, I took the step of adjourning the trial part-heard, after making the following order:
1.That the Independent Children’s Lawyer is directed to seek an explanation from the Queensland Police Service as to the allegation that:
a.on 11 January 2018 they may have obtained photographic evidence from a mobile phone depicting some conduct of the child, [X] (“the child”) born […] 2013; and
b. that a sketchbook containing sketches of a victim child, [C] born […] 2005 (“[C]”) was made available to police by [C]’s mother, [Ms B], along with a statement of [Ms B] at sometime around 29 November 2013 and now marked QP….
2.That these proceedings be adjourned part-heard and listed for one (1) further day at 10.00am on 19 May 2020 in the Family Court of Australia at Brisbane.
3.That the Independent Children’s Lawyer have liberty to contact the Chambers of the Honourable Justice Baumann at […]@familycourt.gov.au should difficulties arise with respect to the enquires to be made pursuant to Order 1.
When the trial resumed on 19 May 2020, the ICL tendered, as Exhibit 16, the response from Queensland Police dated 1 May 2020 as follows:
Searches conducted by this office have been unsuccessful in locating any material that would answer the description of documents sought in relation to point (f) and (g) of the subpoena schedule. [D Town] CIB Officer in Charge Detective Sergeant [L] has advised that the sketch book was disposed of by destruction property management on the 12/10/2014 and nil witness statements were taken from the victim child’s mother. He further advised that the hard drive containing images taken on a mobile phone by child [X] is no longer operating and no other copies were kept by Queensland Police.
The hearing then concluded with brief further evidence by both parents, and oral submissions.
Despite the period that has regrettably lapsed since this judgment was reserved, no application to re-open has been made by anyone. Aware of the fact that physical time had ceased in September 2019, I infer no further physical interaction between the father and X has taken place. I have no evidence as to whether the regular telephone interaction which was occurring at the time of the hearing, is still occurring.
HISTORY OF PHYSICAL CONTACT SINCE SEPARATION TO SEPTEMBER 2019
I take this history from the father’s trial affidavit, about which he was not seriously challenged, namely:
(a)From August 2014 to April 2015, X spent time with the father on a daily basis with overnight time;
(b)Although the father said the mother indicated before April 2015 she would live with the father after he got settled in Brisbane, the mother disputes this conversation. The father desired to live in Brisbane for further education (a course he commenced but did not complete). The father spent no time with X between 28 April 2015 and 31 January 2016;
(c)The father travelled to D Town for a period of about a week from 31 January 2016, initially staying in the mother’s parents’ home with the mother and X. The father says the mother wished to reconcile and after commencing sex on one occasion, he says he told her he did not “want to do this”. This is the incident where the mother claims the sex was without her consent. After spending a few periods with X, the father left D Town on 5 February 2016;
(d)Between February 2016 and January 2017, the father says he lost contact with the mother and apart from one telephone call with the mother where he says she told him “fuck off you fucking paedophile” he had no contact with X;
(e)Between 2 February 2017 and 28 March 2017, the father had three or four interactions with X by video (I infer Facetime or the like), arranged by his mother;
(f)The father travelled to D Town and spent some time, supervised by the mother, on 11/12 April 2017 “for an hour or so”;
(g)Having commenced a live in relationship with Ms G in February 2017, after the father commenced proceedings in May 2017, on 7 August 2017 the father travelled to D Town with Ms G to see X. The father spent some time with the child;
(h)He next spent limited time with the child X in J Town over the period 22 October 2017 to 24 October 2017. The father says (at paragraph 50(b)) he did not spend all the time with X as ordered by the Court because he was not working and due to a lack of funds, he could not afford to travel and stay in J Town;
(i)The father next travelled to D Town (where his father and aunt lived) where he spent time with X on Christmas Day 2017. It is unclear how many further visits over the two weeks he spent in D Town took place;
(j)In the period 7 February 2018 to August 2018, he spent time in J Town over four weekends, but on a number of other weekends he could not afford to travel to J Town (he says he missed five weekends as ordered);
(k)Similarly, after the Court made further Orders on 14 August 2018, between 14 August 2018 and 26 March 2019 the father spent time with X on two occasions (19 August and 16 September) but he missed at least nine ordered weekends, saying his car broke down and he could not afford to fix it; and
(l)From March 2019 to the present time, despite further Orders seeking to ensure the child spent time with the father (and that the mother facilitate the time), the father’s evidence is he spent time over four weekends but again missed a number of visits as he had no money to travel to J Town. In November 2019 he was diagnosed by his General Practitioner as suffering from depression and anxiety.
This history, over a period of nearly five years before the hearing, reveals the limited and inconsistent time X spent with the father. She was 12 months old at separation and just over five years of age when observed with the father by Ms F in September 2018. At paragraphs 110 to 115 Ms F in the family report sets out her observations of X with the father and then the father and Ms G. Clearly X identified with her father and showed no signs of apprehension – rushing over to hug him when he entered the room and offering her father (and Ms G) a goodbye hug when the observation session ended.
DOES THE FATHER POSE AN UNACCEPTABLE RISK OF HARM TO X?
The evidence in this case reveals many contradictions, some of which include:
(a)Ms B says she had suspicions in late 2012 that the father “was touching” C inappropriately. When she asked C she said “no”. C’s mental health was deteriorating at the time and Ms B took the matter no further;
(b)However, in late 2013, C’s nine year old cousin M told Ms B that C had disclosed to him that “[Mr Houghton] is touching her” and after Ms B persisted in asking her if Mr Houghton is touching her, the child “nodded” her head, causing Ms B to become hysterical and unable to recall what happened next. She does recall seeking out C’s father Mr N but instead came across Mr Houghton at his parents’ home and a confusing conversation with Mr Houghton and his father and Ms B took place with C in the car;
(c)The mother, the next day, took the child C to the Police and a s 93A interview was conducted. A transcript of the interview is Exhibit 18 and the recording in Exhibit 1;
(d)The evaluation of Police sets out in Exhibit 2 that there was a concern about the “emotive way”, I infer Ms B, discussed child sexual abuse “whilst the children were present” and “that this could impede and lead children in their recollections”. The Police concluded that “considering nil disclosures [by] primary named child and limited supporting disclosures of child witnesses; in consideration of refusal by named suspect Mr Houghton there is insufficient evidence to commence proceedings for any offence”. As Ms B made clear in her affidavit and her cross-examination, she did not accept the Police position and continues to believe the father sexually abused C;
(e)I found the emotional reaction by Ms B in the witness box, when challenged, as so disturbing that it is difficult to attach significant weight to her evidence. She was clearly very negative about the father and also his father Mr K – who she asked the Court to accept was a “Nazi supporter” well known in the D Town community. I found it very surprising that there was no evidence offered by the mother’s brother Mr N – the biological father of C when he was aware of these serious allegations;
(f)By August 2014, it seems Ms B’s daughters P (aged 12) and Q (aged seven) were asserting the father had touched them inappropriately – again supported by their mother Ms B. As I understand the evidence, when C’s siblings were interviewed some time in January 2015 they made no disclosures. The mother informed the father in May 2015 that “both P and [Q] [sic] were now saying that (I) had not touched them” (paragraph 30(f));
(g)During the father’s visit to D Town on or about 1 February 2016, the mother facilitated X spending time with the father at her home. Her description at paragraph 41 is that she observed “X was naked had one leg on each side of Mr Houghton’s leg and he was moving her in a grinding motion on his leg”. After this incident it appears the mother could not “comprehend or deal with what I had seen. It all became too much, especially because C and Ms B had been making accusations about Mr Houghton sexually interfering with C for years and I had always taken Mr Houghton’s side” (mother’s affidavit at paragraphs 42 to 44) The mother gave a statement to J Town Police on 8 February 2016 (Exhibit 6) but nothing further happened;
(h)Again, it is surprising that the father did not, in his trial affidavit, deal with this allegation by the mother but properly, the mother’s evidence was put to him. He said initially he might have been on the bed and X “was laying on top of me”. She was in underpants and not naked. Further, the father said in cross-examination:
(i)he did not specifically deny the grinding incident in his affidavit;
(ii)at some stage the mother did allege the child was on his genitalia but that was not true and the mother is simply making up the story, including that he became aggressive;
(iii)he now recalls the mother telling him at some time not to put the child on his lap – but he thinks her being on his lap is “normal behaviour”;
(iv)he specifically denied he engaged, as the mother alleges, the child X in a “long kiss”, although he has kissed her on the cheek and occasionally on the lips. Again, he saw nothing wrong with this;
(v)he has used the expression “pinky promise” but denies that is anything related to asking the child not to reveal sexual abuse; and
(vi)although he has had limited time with X, he has not observed any sexualised behaviour (such as placing her finger into her vagina) or taking photos of her genitalia with a mobile phone.
(i)The mother’s increasing concerns about what she alleged she observed caused her to give a statement to Police on 11 January 2018 (Exhibit 5). This was after the father had commenced proceedings in the Federal Circuit Court of Australia and before she filed her Response. The statement refers to the period the father spent time with X around Christmas 2017 (as ordered) and about X taking photos of her “private part”. The mother says that the child told her on or about 1 January 2018 that:
(i)the father showed her how to take “those photos”;
(ii)she then took the child to the hospital for examination by a female doctor. When in response to a question posed by the doctor, “has anyone else itched your private part for you”, she, the mother says, replied “yep” “my dad”.
(j)The hospital notes (Exhibit 3) confirm the mother did present the child to the hospital on 1 January 2018. The report by the mother provided her perspective of the history of their relationship and her concerns about sexualised behaviour and the use of a mobile phone. The notes confirm the doctor questioned X in this way:
I stated to [X] that mother [sic] was worried about her scratching her bottom and asked if anyone else has been scratching her bottom too and she said “yes” and when I asked her who it was she said “daddy”. Mother burst into tears.
The notes also record that Ms O (the mother’s sister) reported to the maternal grandmother Ms R that day, that she had observed X and her cousin (12 years) in sexualised play with X “rubbing S’s genitalia with her hand”. The mother reported she has never seen X behave like this before but as S and her mother also live in J Town, they have regular contact.
The hospital notes expressed no conclusion.
(k)The Police notes (Exhibit 4) record an initial report to D Town Police on 11 January 2018 by the mother, consistent with her Police statement, with the mother informing the Police the father and her were due in Court in February 2018 as the father was “wanting more custody with the victim child”. The mother was unable to stay in D Town until 22 January 2018 when officers from City E CPIU would be present. Attempts for the child to be interviewed on 17 January 2018 at City E CPIU were unsuccessful because the child “was unable to construct sentences regarding innocuous events” and even with direct questioning “the victim child failed to disclosure any offences”. The mother was told that, as a result, the criminal investigation would not be substantiated.
CONCLUSION
I have given serious consideration to these various elements of the alleged sexual abuse of X by the father. I agree that no positive finding can be made against him about the alleged incidents.
The statement obtained by Police from C is troubling – not only by its content but the real concern I have that the course of questioning by her mother Ms B and her fixation that sexual abuse occurred may have contaminated the interview. I do not agree with the description of C’s interview and note that although the Police say in Exhibit 2 there were “nil disclosures”, that is not correct. After prolonged questioning by Police where C says repeatedly that she “didn’t like talking to other people”, she was scared”, that she wanted her mother present during the interview and that her mother “is the only person I trust”, she did not voluntarily disclose anything inappropriate.
When pressed about what she had told her cousin M, she said “that Mr Houghton’s a paedophile and he’s been doing it to me”.
Attempts by Police to get context were unsuccessful, other than it happened “at home, at the unit, at Nanna’s house and on the couch”.
She said her mother told her “not to speak about it” and that effectively she wanted to be prepared for the questions which involved her mother telling her “what other types of questions you were going to ask”.
C said her mother Ms B “wants to hurt [Ms Day]… because she puts up mean Facebook words about her”, before confirming the level of discussions with her mother about sexual abuse with the comment “because it happened to her when she was a teenager”.
In this case however, there is simply insufficient evidence – most not tested anyway – to accept the allegations made by C, which apart from the s 93A interviews, consisted of evidence from Ms B alone. Certainly C’s mother Ms B believes it to be true, but she presented in such an erratic manner in Court that I do not attach significant weight to her evidence. The mother in this case did not seek to support the allegation of abuse of C with any corroborative evidence from, for example, C’s father Mr N (the mother’s brother) or from the maternal grandmother Ms R.
The mother is hyper vigilant but, I suspect, easily influenced by her family and particularly Ms B. The family narrative is that the father is a sexual predator on young girls. That is a serious allegation with very significant consequences, if found to be true (see s 140(2) of the Evidence Act 1995 (Cth)).
Although there are many aspects of the father’s presentation and evidence that I found inconsistent, I am not satisfied that he poses a risk to X by reason of sexual abuse – but I do accept he has demonstrated (through the “long kiss” and “grinding incident”), accepting the mother’s observations, a serious lack of boundaries. In so doing he has seemingly ignored the mother’s requests which were reasonable. Answering at one stage, as he did, that she is his daughter and he shall do as he likes, gave no comfort at all.
In making this finding, and considering attempts by the mother to connect observed sexual behaviour of the child (the circumstances of which again are very vague) with some historical conduct of the father, I have formed a concern that the mother may have panicked when the father commenced proceedings, although I accept this is speculation and was not put to her.
As these Reasons seek to explain however, the fact that I do not conclude the father is an unacceptable risk to X is not the end of the analysis of what is in her best interests. Had the finding sought by the ICL and the mother been made, the pathway from such a finding is reasonably clear. I move to a further analysis now, begging with a consideration of the evidence of the family report writer Ms F.
FAMILY REPORT
Experienced social worker and family consultant Ms F produced a family report dated 29 October 2018 (marked Exhibit 17) and was the subject of cross-examination. At the time of the interviews on 11 September 2018, the mother had not been assessed by Dr H, although Ms F’s view was that the mother presented “as a very vulnerable woman”.
Although at paragraphs 134 to 144, Ms F makes forensic comments about the evidence, she did not know that no finding of sexual abuse of X was sought, and in my view, on the evidence was not open. As a result, the assessment begins from a flawed basis. I see no need to deal with these views expressed but rather consider the recommendation at paragraph 159(b) that:
If the Court does not find that the father poses a risk of harm to X; then
i.X lives with the mother; and
ii.X spends time with her father in each school holidays. This time should gradually build from day time to overnight time, with a final goal of X spending one week in each school holidays with her father; and
iii.Should the father’s resources permit, the father travels to J Town up to once per month to spend weekend time with X.
Although I will record some of the other evidence of this child expert under cross-examination shortly, it is appropriate to record that:
(a)at paragraph 26, if the Court finds that the father is not a risk to X’s safety, the mother said she would have substantial difficulty coping with unsupervised time due to her safety concerning;
(b)at paragraphs 110 to 112, Ms F set out the observations of X’s interaction with the father noting “the two were noted to have a warm rapport and seemed comfortable in each other’s company”;
(c)at paragraphs 113 to 115, further observations of X with the father and his partner Ms G, which was positive and concluded with the observation that “X was noted to offer her father and Ms G a hug goodbye, however separated from them without significant issue”;
(d)Noting, at paragraphs 132 that the mother has formed a view that the father poses a significant risk of sexual abuse to X, any unsupervised time between the child and the father “is likely to have a significant impact on the mother and her parenting” and “this may exacerbate her existing fragile mental health” and this “will place pressure on her day-to-day parenting of X”. The mother “may inform X of her views and beliefs in an effort to instil protective behaviours, which may result in X becoming fearful of her father or concerned when spending time with him”. I accept this opinion;
(e)Noting, at paragraph 133, that the child has experienced very infrequent and restricted time:
this limited time is likely to have impacted on their bond and impair the development of a deep and meaningful relationship between them. This time cannot be replaced and should the Court the father is not an unacceptable risk of harm to [X] will have been an unnecessary rupture to their relationship. However, given the positive and warm relationship that has developed over the last year, this bodes well as a solid base for the development of a future relationship.
Under cross-examination by Counsel for the father, Ms F fairly conceded that her conclusion at paragraph 136 was premised on the mother not having information. I am satisfied the mother had significant “information” from Ms B, for example. Ms F was asked by the mother’s Counsel to reflect on Dr H’s opinion, and after doing so, she accepted and shared his opinions that the mother is unable to disguise her views about the father and, what Ms F found to be, her genuine beliefs (paragraph 135).
Although Ms F agreed with the suggestion of Counsel for the ICL that cessation of time would have a positive impact on the mother, she acknowledged her report identified both positives and negatives. I have taken those views into consideration.
Asked about the option (if time was to be supervised) of contact occurring four times a year in each school holidays for one or two days (each event), Ms F said even this limited time might prove difficult for the mother to cope with over time. Certainly Ms F did not support the mother being the supervisor.
I take the evidence of Ms F into consideration
I rely upon earlier findings in these Reasons for Judgment without repeating them, as I consider the best interests of X within the matrix of the relevant primary and additional considerations discussed in a narrative manner now.
PRIMARY CONSIDERATIONS
On the evidence, if a sustainable relationship between X and the father can be created and developed, I am satisfied that X will benefit from having a meaningful relationship with both parents. The observations made by Ms F, although some years ago, reflected a warm relationship at the time.
Section 60CC requires the Court to consider “the need to protect the child from physical or psychological harm, from being subject to, or exposed to, abuse neglect or family violence”. I repeat my earlier finding that I do not assess that the father poses a risk of sexual abuse to X. The conflict earlier in the relationship between the parents would meet the definition of “family violence” as defined in s 4AB(1), however that was many years ago and even post separation, the mother voluntarily and occasionally permitted the father to live in her home in D Town when the father visited to spend time with the child. No submissions were made that family violence is a risk factor now.
It may be possible to find that the mother’s concrete views about the father having sexually abused both C and X (at least), not supported by this Court’s findings, could expose the child to psychological harm, however the mother, with some form of intellectual challenges, holds, I find, those beliefs genuinely. Therein less the dilemma that confronts the Court in this matter.
ADDITIONAL CONSIDERATIONS
I could not apply any significant weight to the only independent evidence of the child’s views or feelings – captured by Ms F in September 2018, when X was five years of age. Furthermore, despite her tender age, the limited time she has spent with the father, coupled with the context of likely negative views of the father expressed around the child by the mother and/or family members, must further reduce my concerns about applying weight to her feelings expressed.
As to the nature of the child’s relationships, clearly the mother has been the primary carer and I find this is the most important relationship to the child, from her lived experience, at this time. It is difficult on the evidence to determine the strength of X’s relationship with the father – other than to record that the observations by Ms F reflect that X identified the father as her father. Whether the mother’s new relationship (which was to be the catalyst for her moving after the trial from J Town to City T), has meant a new “father figure” in the household of the mother has arisen, I simply do not know. There is every likelihood it has, but that would depend on the continuation of that new relationship for the mother.
The parents can, and I do, criticise them for their lack of ability to comply with many of the highly prescribed Orders for X to spend time with the father. The mother has moved from far north Queensland to regional New South Wales, and showed little capacity, if not interest, in making the child’s opportunity to spend time with the father more practically achievable – for example meeting at some point between J Town and Brisbane (a distance of over 400 kilometres). The father would often say time did not occur because he did not have the money or at times a reliable car. Whilst I understand these expressed difficulties, it seems that neither parent totally grasped the reality that they both needed to do more to allow the child to develop her relationship with the father.
Section 60CC(3)(d) prescribes this consideration:
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
…
This factor looms large, as a change from virtually no time (albeit supervised) to unsupervised time of more regularity with the father is a very significant change in circumstances, at least because of:
(a)the likely inability of the mother, on the evidence of both Ms F and Dr H, to cope with such an outcome; and
(b)the effect on X where her primary (really sole) carer may have her parenting capacity significantly diminished; and
(c)the uncertainty of how X may adjust to spending time so far away from her usual residence (and the knowledge her mother is not near her), and for overnight time which she has rarely, if ever, experienced with her father since she was very young.
These concerns do weigh heavily in the Court’s determination as to what orders are in X’s best interests.
The Reasons so far have identified and demonstrate that financial and geographical issues (if not merely willingness as earlier mentioned) have all combined to create significant practical difficulties and expense for X to spend time with the father – either in Brisbane (where the father lives) or in City T or J Town (where the father would, in addition to travelling to those areas, have to pay for accommodation).
I adopt my earlier finding about the parents’ attitude and capacity to parent – I also adopt my earlier discussion on family violence issues – noting there is no evidence at the time of the hearing that there was a current family violence or protection order in existence or current.
Under s 60CC(3)(l), the Court is required to give consideration to “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”. Although it may have been open, once procedural fairness had been offered, to consider making an interim order now that the “risk” issue has been determined, I was not asked to do so. On balance, this child needs the benefit of final orders, and whilst in parenting proceedings relating to young children, orders are often never “final”, I am satisfied the orders I propose to make are orders at this time least likely to lead to further proceedings.
DISCUSSION OF WHAT ORDERS ARE IN THE BEST INTERESTS OF X
The ambivalent relationship between the parents; their poor and ineffective communication and the fact the mother has essentially since separation been making decisions concerning the child which the father has not seriously challenged, provide the basis for me to be satisfied, as the ICL and mother contend, that the mother should have an order for sol parental responsibility.
I intend however to require the mother to keep the father informed of decisions relating to major long term issues. In the same vein, I will order the mother keep the father informed of where the child attends school; where she lives, as well as an alternate postal and email address for the mother. This will provide the father with an address to send cards and gifts as the mother herself proposed.
So as to enable the father to be kept informed he will advise the mother of similar contact details. Both parents will be ordered to advise the other parent of any changes to these particulars within 14 days.
The issue which creates the most difficult decision is whether it is in the best interests of X that the Court prescribe time occur between the child and the father, and if so, in what circumstances. In making a decision about this issue, I have sought to balance the “for” and “against” arguments based on the evidence – remembering that we begin from the general principles set out in s 60B(2) which underlay the objects set out in s 60B(1), including:
(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
In summary, prescribed time would:
(a)take account of the finding that the father does not pose a risk to child;
(b)offer some opportunity for positive engagement for the child with her father which might dilute some of the mother’s influence if she is unable to disguise, compartmentalise or withhold her opinions about the father;
(c)allow the child some opportunity develop a relationship with the father’s partner Ms G and his extended family; and
(d)avoid the long term effects of losing a relationship during her infancy with a loving and caring father.
In summary, an order for no time would:
(a)support the mother who, on the evidence, would not be able to facilitate time genuinely;
(b)relieve the child of experiencing the likely negative effect upon the mother’s parenting capacity day to day;
(c)run the risk that the child will develop a distorted, and in my assessment, incorrect view and perception of her father in particular, and male persons in general; and
(d)have the benefit of not having the ongoing attempts to navigate geographical and financial obstacles to time occurring, with the disruptions to her routine and development. Creating an expectation for a child, only to have that repeatedly dashed (as has occurred) will not benefit her.
I accept that if the Court had found the father posed a risk to the child, then a no time order in this case would seem more justifiable.
However, I have sadly come to the conclusion that, on the evidence at this time, it is not in the best interests of the child to prescribe time between her and the father. With the findings I have made, I make the orders which appears at the commencement of these Reasons, in circumstances that as the child grows older she may wish to initiate contact with her father. The orders will ensure the mother knows how to contact the father.
It could be said such a vague order achieves nothing, as there is nothing the father can actually enforce. However, I regard it as important for the message to be delivered (without a person reading these Reasons), that:
(a)the Court has not found the father poses a risk to the child;
(b)as the child gets older, or if the parents lived closer, with the child’s support these parents could shape arrangements in her best interests at that time;
(c)at least with the orders I do make, the child will be aware (provided the father does take up the opportunities to provide gifts and cards/letters to the child) she has an interested and loving father and as history at times has revealed, if not during her infancy, but later in her life, she has some limited foundation to pursue a relationship with her father if that be her independent desire.
I make the orders which appear at the commencement of these Reasons, which I find are in X’s best interests at this time.
I certify that the preceding seventy-nine (79) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Baumann. Associate:
Dated: 30 March 2022
APPENDIX ONE
1.That the Father Mr Houghton and the Mother Ms Day have equal shared parental responsibility for the major long term issues of X born 2013 (“the child”).
2.That each parent has responsibility for daily decisions about the day to day care, welfare and development of the child while in his or her care.
3.That the child shall live with the Mother.
4.That the child shall spent time with the Father during the school terms (as agreed but failing agreement) as follows:
a.Every sixth weekend in J Town from 5.30pm on a Saturday to before school on the Monday (and that)
i.Handover shall be at the McDonald’s at J Town.
ii.The Father shall ensure that the child sleeps in her own bed.
b.That in the event the Father is able to make himself available and upon giving the Mother seven (7) days’ notice then the child shall spend a further weekend with him at such times as may be agreed between the parties and failing agreement from 5.30pm on the Saturday morning before school on the Monday;
c.That unless otherwise agreed, the Father shall collect the child from the Mother at the start of the child’s time with him (and) the Mother shall collect the child from the Father's residence at the cessation of the child’s time with him.
5.That the child shall spend time with the Father during the New South Wales school vacation periods (as agreed and failing agreement) as follows:
a.That upon the Father obtaining suitable accommodation for the child to stay with him:
i.For the first half of the gazetted New South Wales school vacation periods in even numbered years (and) the second half of the school vacation periods in odd numbered years (and that), the school vacation time shall commence:
A.When a party’s time falls in the first half of the school vacation periods from the first Saturday after the school term finishes and conclude on the day calculated to be half of the school vacation periods;
B.When a party’s time falls in the second half of the school vacation periods, from the day calculated to represent half of the school vacation periods to the Sunday before the school term recommences;
b.That until the Father finds suitable accommodation for the child to stay with him:
i.In the first week of the Autumn and Spring school vacation periods in Brisbane:
A.from 9:00am to 8:00pm each Tuesday, Wednesday, Thursday and Friday
B.handover shall be at the playground in Suburb U
ii.In the first week of the Winter and Summer school vacation periods in J Town:
A.from 9:00am Tuesday to 8:00pm on the following Friday (and that)
B.The Father shall ensure that the child sleeps in her own bed.
6.That the child shall communicate with the party that she is not spending time with on school holidays each Monday, Wednesday and Friday at 4.00pm with that party to initiate the call.
7.That in the event that the child is not living with the Father then, the child shall communicate with the Father by telephone or by other electronic means and at all times agreed between the parties and failing agreement:
a.Each Monday, Wednesday and Friday at 4.00pm Eastern Standard Time, with the Father to initiate the call.
b.On the birthday of the child at 4.00pm with the Father to initiate the call.
c.On the Father’s birthday at 4.00pm with the Father to initiate the call.
d.On Christmas day at 4.00pm with the Father to make the call.
e.On Father’s Day at 4.00pm with the Father to initiate the call.
8.That when the child is communicating with the other parent, each parent shall:
a.Ensure that the child is available to receive the telephone call;
b.Ensure that the child has privacy during their communication with the other parent.
9.That neither party shall discuss these proceedings with the child.
10.That during the time that the child is with either party, that party shall:
a.Respect the privacy of the other parent and not question the child about the personal life of the other parent; and
b.Speak of the other parent respectfully; and
c.Not denigrate or insult the other parent in the presence or hearing of the child; and
d.use their best endeavours to ensure that others do not denigrate or insult the other parent in the hearing or presence of the child.
11.That the parties shall keep the other informed of the child’s doctors, health care and other treatment providers and authorise those practitioners to provide the other parent with information that they are lawfully able to provide the other parent with information that they are lawfully able to provide about the child and this order shall serve as such authority.
12.That each party shall inform the other parent as soon as reasonably practicable of any medical condition, significant health issue or significant illness suffered by the child and authorise any treating medical practitioner to release the childs medical information to the other parent.
13.That the parties shall keep the other informed of any day care, school, educational facility or extra-curricular activity provider and authorise those providers to provide the other parent with information that they are lawfully able to provide about the child and the option to purchase school photographs and this order shall serve as such authority.
14.That if there is a cost associated with the provision of any information or documents under these orders from the child’s doctors, health care and other treatment providers or day care, school, educational facility or extracurricular activity provider, the expense shall be borne by the parent requesting the information.
15.That each party shall keep the other party informed at all times of their residential address and contact telephone number and to notify the other parent at least seven (7) days prior to relocating their residence beyond a twenty (20) kilometre radius from where they currently reside.
16.That subject to the conditions imposed by the child’s schools, these orders authorise both parties to attend school functions to which parents are ordinarily invited including but not limited to carnivals, sports days, fetes, concerts, plays and parent/teacher interviews.
17.That each party keep the other parent informed at all times of their residential address and contact telephone number.
18.That the mother be restrained from changing the child’s residence without the written consent of the Father or Court Order.
0
0
0