J and H
[2003] FMCAfam 261
•29 July 2003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| J & H | [2003] FMCAfam 261 |
| FAMILY LAW – contact – father in prison for sexual assault and attempted rape of mother – effect of violence upon mother and child. Family Law Act 1975 (Cth) ss. 60B, 65E, 68F JG and BG (1994) FLC 92-515 |
| Applicant: | S T J |
| Respondent: | W M H |
| File No: | LNM 2386 OF 2002 |
| Delivered on: | 29 July 2003 |
| Delivered at: | Hobart |
| Hearing date: | 5 June 2003 |
| Judgment of: | Roberts FM |
REPRESENTATION
| Counsel for the Applicant: | Ms Turner |
| Solicitors for the Applicant: | Piggott Wood & Baker |
| Counsel for the Respondent: | Ms Mooney |
| Solicitors for the Respondent: | Fitzgerald & Browne |
ORDERS
That A M H born 6th March 1998 (“the child”) reside with W M H (“the Mother”).
That the Mother have the sole responsibility for the long term and day to day care, welfare and development of the child.
That the application of S T J (“the Father”) for contact with the child be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT HOBART |
LNM 2386 of 2002
| S T J |
Applicant
And
| W M H |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an Application by S T J (“the Father”) for specified contact with his daughter, A M H born 6th March 1998 (“the child”). The Application is opposed by the child’s mother, W M H (“the Mother”).
The Father is seeking contact with the child at the Hayes Prison Farm in Tasmania, on the basis that his father collect the child from the Mother each second Sunday at 10.00 a.m. and return the child to her at 1.30 p.m. The journey from Hobart to the prison farm is approximately forty-five minutes each way so that would allow him to have approximately two hours contact at the prison farm.
The Father’s originating application was filed on 17th May 2002, amended by a further application filed 22nd January 2003 and again by another amended application filed 3rd March 2003. However, the Court was informed of the Father’s finalised position in relation to contact at the hearing by his counsel. This was presumably because he had only recently been transferred from the Risdon Prison to the Hayes Prison Farm and had therefore only recently become aware of the availability of contact time.
The Father is also seeking contact for half of Christmas Day and on Father’s Day, in addition to weekly telephone contact.
The Mother’s Response was filed on 6th June 2002 and in that document she seeks a residence order and an order for her to be responsible for the long term and day to day care, welfare and development of the child. That was not opposed during the hearing.
The Mother also seeks Orders that contact between the child and the Father be reserved “until the Father has completed a full comprehensive anger management course and drug rehabilitation.”
The Father filed an affidavit in support of his application, in addition to an affidavit sworn by his father. Both were cross-examined. Further, the Father relied upon additional evidence from an alcohol and drug worker and a prison services officer.
The Mother relied upon affidavits sworn by herself, her sister and a psychologist. All three were also cross-examined.
Background
The Mother and the Father started a relationship in 1995 and started living together in January 1996.
There was a long history of drug taking by the Father and violence by him towards the Mother.
The parties’ cohabitation was not continuous. There were a number of separations and they were separated at the time that the Mother realised that she was pregnant. When the Father was informed of the pregnancy, he insisted upon DNA tests and when they proved to his satisfaction that he was the father, he returned from Sydney to Tasmania.
The parties finally separated in September 2001 and the Mother obtained a Domestic Restraint Order against him pursuant to the Justices Act (Tas).
After the parties separated the Father had contact with the child for a few hours each Sunday. However, that ceased after the events of 6th January 2002.
On 6th January 2002 the Father viciously sexually assaulted the Mother (which will be referred to below). On 5th August 2002 he was convicted of one count of Indecent Assault, one count of Aggravated Sexual Assault and two counts of Attempted Rape. He was sentenced to three years imprisonment to date from 4th August 2002. The earliest that he can be released on parole is 4th February 2004.
At the time that the Father made his application, he was a resident of Risdon Prison, but he expected to be transferred to the Hayes Prison Farm.
The Law
Parenting orders arise in proceedings under Part VII of the Family Law Act 1975 (“the Act”). They are subject to section 65E of the Act which provides that in determining the outcome, the best interests of the child is the paramount consideration. That is clearly an overriding consideration.
Section 60B of the Act sets out the objects of Part VII and the principles underlying those objects. Those four principles are:
a)children have a right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
b)children have a right of contact, on a regular basis, with both their parents and with other people significant to their care, welfare and development; and
c)parents share duties and responsibilities covering the care, welfare and development of their children; and
d)parents should agree about the future parenting of their children.
In determining what is in the best interests of a child, the Court is required to have regard to subsection (2) of section 68F of the Act. I shall therefore review the evidence in the light of the matters set out in that subsection.
Evidence & Findings
In his affidavit in support of his application, the Father makes no mention of why he was imprisoned. On the other hand, the Mother’s affidavit refers to the assault upon her by the Father in great detail.
It is a matter of history that the Father pleaded guilty to the charges for which he was convicted. A copy of the Judge’s comments upon passing sentence are annexed to the Mother’s affidavit and they were put to the Father in cross-examination. It was clear that he recalled those comments. In my view it is worth repeating those comments, because they summarise the horrific nature of the attack upon the Mother outside her home on 6th January 2002. In part, those comments are as follows:
“You and the complainant separated in about September last year and have since lived separately and apart. The complainant has a restraining order against you. She made it clear to you on more than one occasion, that she did not wish to resume the relationship.
On the morning the crimes were committed your former partner went out with a friend. You knew this as you had, in breach of the restraining order, gone to her house and seen the two of them leave. You returned later that morning. The complainant and her friend were then sitting in his car parked near her house. You did not know that. You reached her gate, took off your shoes and jacket and went onto the property. I expect that you thought that the two of them were inside the house. At that stage the complainant got out of the car and called out to you. I find that she asked you to go but you refused. I find that you confronted her friend, and in the end, the complainant asked him to leave as she thought that might avoid trouble.
After talking at the front gate for some considerable time, the complainant turned and entered her property. You followed uninvited.
On some steps leading down to the house, you committed the first crime by seizing her in a bear hug and dragging her down the steps. You then pushed her up against the wall, exposed her breasts and sucked and bit them. Not satisfied, you then flung her on her back on a nearby lawn, pulled her jeans down and inserted your fingers roughly into her vagina. That was the second crime. Despite her violent struggles and her screaming out, you then tried unsuccessfully to insert your penis into her vagina. That was your third crime. The two of you then got up and she pulled up her clothes, but before she had a chance to get away, you committed your fourth crime by taking her to another place on the lawn. There, you flung her down again, pulled her clothes down and again, tried to put your penis in her vagina. All the time this was going on the complainant was screaming and calling for help. Your response to that was to tell her that if she didn’t shut up you would break her jaw.
Your victim has suffered badly as a result of your attack. She suffered extensive, but not long lasting physical injuries together with more serious and devastating psychological injuries. Your four year old daughter has also consequentially suffered as a result of your criminal conduct. The attack only concluded when the complainant’s friend returned to the scene to see if she was alright. There is no doubt in my mind that these were crimes of violent sexual domination by a man over a woman who used to enjoy his trust, committed because she would not obey his wish that she again resume cohabitation with him. Their commission involved a deliberate breach of a court restraining order for which you will no doubt be dealt with in another court.
There is little to be said by way of mitigation. Your counsel told me that you were immediately remorseful and points to the fact you rang the complainant within hours of the attack and left a sorry message on her machine and also, that you called the police to tell them what you had done. I have some reservations about the extent of your remorse. The message to the complainant could be seen as self-serving, and the call to the police may have been made because you knew that she would call the police anyway. Indeed, during the course of that call you asked if she had already done so. Further, there was nothing in the conduct of your plea in mitigation to inspire in me the belief that you are genuinely contrite about these crimes and their effect on your victim.
Although I take into account your plea of guilty, I note that it was only indicated a day or so ago, and the case was prepared for trial with attendant anxiety for the complainant.”
When the Father was shown the comments by the Judge upon sentencing, and was asked questions about the matter, he indicated that he had only pleaded guilty because his then solicitor had informed him that if he did so he would only receive a suspended sentence. In short, it was his evidence in the hearing of this matter that he was not guilty of all the offences for which he was convicted. The impression I gained was that he was attempting to convince the Court that his actions were not as violent as those set out in the Judge’s comments on sentencing. He claimed that he did not penetrate the Mother with his fingers. He also made a point of informing counsel for the Mother that he was convicted of “attempted rape” and not “rape”.
At one point in cross-examination, the Father quite clearly tried to transfer some of the blame for his actions on 6th January 2002 onto the Mother, because he said that no other woman that he had known had ever got him quite as worked up as she had.
It is quite clear to me that, if the Father was not contrite at the time that he was sentenced, his period of incarceration to date has done nothing to make him so.
It is the Father’s evidence that he has never directly hurt the child or physically abused her in anyway. Indeed, it was his evidence that he would be violent towards any person who did.
Even if I accept that the Father has not been violent or abusive towards the child, I do not accept that he has not been violent in front of the child. There is much evidence of his violence towards the Mother in her affidavit material that was not seriously challenged by the Father. Clearly, some of his violent episodes were in the presence of his daughter.
It is clear that Courts now better appreciate the effect of violence upon children. For example, in JG and BG (1994) FLC 92-515, Chisholm J stated that domestic violence is not only relevant where the violence is directed at the children themselves, and when violence is committed in their presence, but even when they do not witness it. See also Patsalou and Patsalou (1995) FLC 92-580
The Mother said that she has been badly affected by the Father’s behaviour towards her on 6th January 2002. She says that she is angry about what he did to her and she is still very fearful of him. She says her medical conditions include sleeping badly, her skin drying and her hair falling out. In addition, she says there are times when she sits in fear for many hours and she has not been out socially on her own since the assault on her on 6th January 2002.
The Mother says that she is worried that the Father will try to assault her again, and she is also worried that if he has contact with the child, he will assault her. She also says that she is concerned that her fears in relation to the Father wanting contact will also affect her parenting of the child.
In her affidavit the Mother says:
“I am concerned that none of the affidavit material filed by (the Father) acknowledges what he has done to me or shows that in anyway he is prepared to change, or has undergone sufficient counselling at all to show that he will change so he no longer presents a threat to me or (the child).”
It is quite clear from the evidence of the Father that he does not even acknowledge what he has done to the Mother. It is therefore hardly surprising that he has no appreciation whatsoever of the effect of what he has done to her. Indeed, his evidence was that he did not really think that his behaviour had affected her at all. When questioned subsequently to that, he also said that he did not accept that she had suffered as stated and that she was only lying to further her own ends.
I fully accept the evidence of the psychologist who was called on behalf of the Mother.
The psychologist had initially been retained to provide a medico legal report for the Mother’s Criminal Injuries Compensation case. Her report to the Mother’s solicitors in relation to this matter referred to her first meeting with the Mother was as follows:
“Her predominant symptoms were those of fear, she felt unsafe in her home and had to leave it, she feared for her own safety and also feared that (the father) could be violent towards their daughter (the child). She described her situation as one of being constantly “on alert”. Her symptoms at this time were consistent with a diagnosis of Post Traumatic Stress and the main symptoms were flashbacks, nightmares, avoidance of any associated stimuli, hyper vigilance and heightened arousal by small associated stimuli.”
The psychologist went on to say that the Mother still has many features of Post Traumatic Stress and that at present her anxiety is further heightened by concerns that the Father is seeking contact with the child.
The psychologist commented further as follows:
“It is difficult for me to comment about the ramifications of this on (the mother’s) capacity to parent (the child). I have not met (the child) or seen (the mother) and (the child) together. However, high levels of anxiety, frustration, anger and constant fear would not aid any relationships, including the relationship between a mother and child.
It is important to note that is not desirable for (the mother) to continue living in such an anxiety state on a continuous basis. All people reach a limit beyond which they cannot function adequately. There is no suggestion that this is currently the case for (the mother), however, she should be urged to continue to look for ways to reduce stress on her life wherever possible.
At present (the mother) describes her most severe stress as being (the father’s) desire to have contact with (the child).”
In addition to any effect that the Fathers behaviour may have had upon the child, I also need to take into account the effect of his behaviour on the Mother and its consequent effect upon her parenting ability. This has been considered by the Family Court of Australia in a number of cases and I can take some guidance from them.
The Full Court in B and B (1993) FLC 92-357 stated at 79,780:
“It is not unreasonable for the Court to take into account in assessing whether an unacceptable risk exists, the need of a custodial parent to be assured of the children's protection, as primary caregiver, anxiety about the children's exposure to potential harm is likely to impact adversely on that parent's ability to care for the children.”
In Russell v Close (Unreported Appeal No. SA45 of 1992) their Honours said:
“In upholding children's rights to protection from sexual, psychological or emotional harm the Court must take into account any anxiety on the part of the primary caregiver concerning the child's exposure to potential harm where such anxiety is likely to impact adversely on that parent's care-giving ability.”
In Sedgley v Sedgley (1995) FLC 92-623 the Full Court said at 82,259:
“Whilst the welfare of the child might require some continuity of contact with the non-custodial parent, the need for peace and tranquillity in the custodial parent's household may be a more compelling need for the child.”
In that case, the full court went on to say at 82,260:
“The decision to cut the relationship between a parent and child is one which ordinarily the Court takes only with considerable hesitation.”
In Grant and Grant (1994) FLC 92-506 Purdy J said at 81,259:
“If the Court comes to the conclusion that an access order will have an effect on the custodial parent which will impair to a significant degree the emotional support and for that matter physical support which the custodial parent can render the child, then the Court must take that into account in assessing whether access is for the benefit of the child.”
It seems to me that the consistent thread running through all these cases is that the Court needs to weigh up the benefit to a child of having contact with its parent against the harm that may be done to the caregiving capacity of the residence parent arising out of the stress and anxiety that would result from contact.
In this particular case the Mother is seeking an order that the Father’s contact be reserved until he had completed “a full comprehensive anger management course and drug rehabilitation”.
In relation to drug rehabilitation, one of the Father’s witnesses had conducted a course at the prison that the Father attended. As a result, he received a “Certificate of Participation” which showed that he had successfully completed an “Alcohol and Other Drug Awareness Course” which comprised five hours over two weeks. When that witness gave evidence on the Father’s behalf, he provided a report that showed that the Father’s drug of concern was alcohol. This conflicted directly with the evidence of the Father, who said that his drug problem was with marijuana, not alcohol. In my view that reflected poorly upon the Father’s own credibility.
The Prison Services officer who also gave evidence on the Father’s behalf indicated that the Father would have liked to have attended an Anger Management Course, but no such course had yet been available during the Father’s term of incarceration.
This appeared to be in conflict with the evidence of the Father in cross-examination when he indicated that he did not feel that he needed to attend the “Changing Abusive Behaviour” programme.
Conclusions
When I weigh up all of the evidence in the light of the relevant factors set out in section 68F(2) of the Act, I come to the conclusions set out below.
The child is most unlikely to have a very good relationship with the Father, because she has had very little contact with him. Although she is now aged five years, the parties’ relationship was “on and off” and after the parties’ final separation in September 2001, the Father was only having contact for a few hours each Sunday. In addition, he has had no contact at all since 6th January 2002.
While it is clear from the Father’s affidavit material that he idealises his own relationship with daughter, that idealisation has been virtually in a vacuum because his correspondence with his daughter since being in prison has not been provided to the child.
On the other hand, I have no reason to conclude that the child’s relationship with the Mother is anything but a natural and loving mother/daughter relationship.
Because the Father has had no contact with the child for one and a half years, and was only having little contact prior to that, I do not consider that there will be any harm to the child if she does not have contact, at least while he is in prison. On the other hand, there is the potential for harm if she does have contact with him and in this regard, I find that the stress and anxiety that will be caused to the Mother has a significant chance of reducing the Mother’s ability to parent her properly. If that happens, that can only be harmful to the child.
I have significant concerns in relation to the Father’s capacity to provide for the needs of the child, especially her emotional needs. This is because of the violent way that he has treated the Mother in front of the child. Further, the Father’s almost total inability to see how his actions have affected the Mother must give the Court significant concern that the Father has an inability to assess how his activities impact upon others.
The Father’s attitude to the responsibilities of parenthood is severely wanting. There is a lot more to the responsibilities of parenthood than simply writing loving letters and postcards to one’s child. Clearly, the Father's attitude to parenthood (and relationships generally) needs to include some recognition of the consequences of his actions upon others, particularly the Mother and the child. Unfortunately, he does not appear to appreciate the consequences of his actions upon others.
I have already referred in detail above to the effect of the Father’s violence in this matter so I do not believe that I need to comment upon that further.
I am aware that it is preferable to make an order that is less likely to lead to further proceedings but I do not believe that such is possible in this case. The Mother is not seeking a complete ban on all contact between the Father and the child. However, she does want to see some improvement in the Father’s attitude and his responsibility for his actions. The Court would also like to see that.
As a consequence, the Order that the Court will make in relation to the Father’s contact is simply that his contact application be dismissed. That will not prevent him making a further application after he is released from prison. However, it is my opinion that, at the very least, he will need to show the following if he is to be successful in any future application for contact:
a)that he fully accepts responsibility for what he did to the Mother on 6th January 2002;
b)that he understands the effects upon the Mother of what he did and its consequent effects upon the child; and
c)that he has successfully completed comprehensive anger management and drug rehabilitation courses.
In the circumstances, it is appropriate that I make orders as follows:
1)That the child reside with the Mother.
2)That the Mother have sole responsibility for the day to day and long term care, welfare and development of the child.
3)That the Father’s contact application be dismissed.
I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of Roberts FM
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