James and Sutton (No 2)

[2015] FamCA 113

FAMILY COURT OF AUSTRALIA

JAMES & SUTTON (NO 2) [2015] FamCA 113

FAMILY LAW – CHILDREN – With Whom a Child Lives With - Where mother sought an order that the child live with her - Where father presently lives in the Country B and spends no time in Australia - Where father does not seek any order that the child live with him - Where child has always lived with the mother - Where Court ordered that the child live with the mother.

FAMILY LAW – CHILDREN – With Whom a Child Spends Time – Best Interests of the Child - Where mother sought order that the child spend no time with the father - Where father did not appear at trial - Where the Independent Children’s Lawyer supported the mother’s application - Where Court considered the question of unacceptable risk - Where disclosures made in 2012 by the child and the child’s friend that the father had sexually abused them - Where time that the father has spent with the child since December 2005 has been very slight, irregular and spasmodic - Where father has not spent any time nor communicated with the child since the making of the allegations - Where mother has a daughter to a previous relationship - Where following the disclosures of the child and the child’s friend, the daughter disclosed that the father had sexually abused her on two occasions while the parties were cohabitating - Where father was charged in relation to those offences but was subsequently acquitted - Where proceedings in relation to the father’s assault on the child and the child’s friend have not commenced however investigations are open - Where Court satisfied on the balance of probabilities that the father presents an unacceptable risk of harm to the child - Where Court acknowledge the inevitable consequences that flow from such finding - Where child’s fervent belief that the father has sexually abused him is a matter of great significance in this case - Where Court of the view that it is in the best interests of the child not to spend face-to-face time with the father - Where no order made permitting the father to spend time with the child.

FAMILY LAW – CHILDREN – With Whom a Child Communicates - Where mother proposes that if there be any contact between the child and the father, it be by way of a child initiated supervised skype call - Where Court noted that the effect of a communication regime via skype at the option of the child would likely have little, if any impact upon the child - Where father has not communicated with the child since the making of the allegations - Where, given the father’s international work location and residence, it is the only feasible way of communication - Where Independent Children’s Lawyer supported the mother’s application, together with the opportunity for the father to forward a gift and card to the child for birthdays and Christmas - Where not opposed by the mother - Where not sought by the father but where the father has in the past forwarded gifts and cards to the child indirectly via the child’s paternal aunt - Where Court noted there was no need for that circuitous route - Where order made requiring the parties to keep each other advised of their current email and postal address.

FAMILY LAW – CHILDREN – Parental Responsibility - Where mother sought order for sole parental responsibility - Where the Independent Children’s Lawyer supported the mother’s application - Where father is presently lives in the Country B and spends no time in Australia - Where father does not seek any allocation of parental responsibility - Where Court ordered the mother have sole parental responsibility.

Family Law Act 1975 (Cth) s 60B, 60CA, 60CC, 61DA, 65DAA, 65DAC
Evidence Act 1999 (Cth) s 140

Harridge v Harridge [2010] FamCA 445
M v M (1988) 166 CLR 69
Mauldera v Orbel (2014) FLC 93-602
N & S & The Separate Representative (1996) FLC 92-655
Neat Holdings Pty Ltd v Karajan & Holdings Pty Ltd (1992) 67 ALJR 170
Re Andrew (1996) FLC 92-692
Wacando v The Commonwealth (1981) 148 CLR 1

APPLICANT: Ms James

RESPONDENT: Mr Sutton

INDEPENDENT CHILDREN’S LAWYER: Ms Gray

FILE NUMBER: CSC 807 of 2012

DATE DELIVERED: 12 February 2015

PLACE DELIVERED: E Town

PLACE HEARD: E Town

JUDGMENT OF: Tree J

HEARING DATE: 12 February 2015

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr King

THE RESPONDENT: In Person

COUNSLE FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Ms Lawrence

SOLICITORS FOR THE INDEPENDENT CHILDREN’S LAWER: Susan Gray

Orders

1. All previous parenting orders are discharged.

2. The mother have sole parental responsibility for C born … (“the child”).

3. The child live with the mother.

4. The child spend no time with the father.

5. The father may communicate with the child only as follows:

   (a)by Skype calls, with the child to initiate any and all such calls, with the mother to supervise such calls and be permitted to terminate them should they become inappropriate;

   (b)by sending a card and/or a present on the child’s birthday; and

   (c)by sending a card and/or a present at Christmas.

6. For the purposes of order 5 above:

   (a)the mother and father shall advise each other of their email and Skype addresses and promptly notify each other of any change thereto;

   (b)the mother shall keep the father advised of her current postal address from time to time; and

   (c)the mother may read any written communication from the father to the child before giving it to the child and in the event she deems the content inappropriate, withhold it from the child.

7. The Independent Children's Lawyer is to explain such of these orders as she thinks appropriate to the child, and is thereafter discharged with the thanks of the Court.

8. Otherwise all extant Applications are dismissed and the matter is removed from the list of active pending cases.

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

FAMILY COURT OF AUSTRALIA AT E TOWN

FILE NUMBER: CSC 807 of 2012

Ms James

Applicant

And

Mr Sutton

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

INTRODUCTION

1. By her initiating application filed 13 December 2012, the mother sought parenting orders in relation to the child the subject of these proceedings, C, born in 2005, and therefore presently a little over nine years of age.  Specifically, she sought an order for sole parental responsibility for the child, who was to live with her and spend supervised time with the father at the E Town Contact Centre at times and intervals facilitated by the centre.  However, by the time of the hearing before me the mother was seeking orders that the father not spend any time with the child, and if there be any contact at all between the father and the child, it be by way of supervised Skype call.

2. The father did not appear at the hearing of the trial when it was called on this morning, he having indicated both on the last occasion the matter was before me, and in subsequent email communication, that he had no intention of appearing.  When he last articulated the orders that he would seek in these proceedings, in his Response filed 3 July 2014, the orders sought were particularly vague.  They were “spend time and communicate with”, which is difficult to precisely correlate to any aspect of the mother’s Initiating Application.  When he was interviewed by the family report writer, Mr D, he was also unable to come up with any specific proposal.  I will detail the reasons for that later in this judgment.

3. Ms Lawrence, who appears as counsel for the Independent Children’s Lawyer, supported the parental responsibility order sought by the mother and the order that the child live with her.  She also supported, based upon the father’s alleged unacceptable risk of harm to the child, that the only contact between the father and the child should be by way of Skype, together with the opportunity for the father to forward a gift and card to the child for birthdays and Christmas.

BACKGROUND FACTS 

1. The parties commenced their relationship in 2003 and commenced to live as a de facto couple in December of that year.  They continued to cohabit until December 2005, the child having been born in that year.  The father appears to be a tradesman, and no doubt because of the more attractive wages that can be earned in remote locations, has at all relevant times been working in remote locations away from E Town.  Those include, it appears, F Town and, more recently and perhaps currently, Country G.  That work has required him to work rosters which see him living for some weeks in that remote location, and then having some weeks at another location of his choosing in his time off. 

2. During the course of the relationship, and for some years thereafter, the father appears to have spent most, if not all, of his rostered weeks off work in E Town or the North Queensland area.  However, he presently is, and for some years now has been, in a relationship in the Country B, and has instead spent his weeks off there.  Even when he was spending his weeks off in E Town, it appears as though the time he spent with the child was limited, mostly being the first and last days of his time off.  It appears as though he has only ever spent two one-week periods with the child, on both of which occasions he took him to Southern Queensland to holiday, while staying with his sister, being the paternal aunt.  It will be immediately appreciated that therefore the time which the father has spent with the child since December 2005, when the parties separated, has been very slight, irregular and spasmodic. 

3. The mother brought into the relationship two older children, including a daughter, Ms H.  She will become relevant for reasons shortly to be explained.  The mother has subsequent to separation, after some years, re-partnered, and the family comprising the remaining daughter from her earlier relationship, the child, the mother and the mother’s new partner appears to be a close, cohesive unit. 

4. A central issue in these proceedings arises from the fact that in October 2012 the child, C, and a friend of his, J, made disclosures that the father had sexually abused both of them.  The allegation is that one occasion, when both J and the child were lying in bunk beds, the father touched or brushed their genitals, and on other occasions involving only the child C, that the father touched his genitals whilst in a shower, seemingly whilst washing him.  I will return to a consideration of the detail of those allegations in due course.  However, for present purposes, it is important to note that since those allegations were first made in October 2012, the father has not spent any time, nor as I understand it communicated, with the child, although it appears as though via his sister in Region I, he has forwarded gifts and cards to the child indirectly.

5. As I say, the mother resides within the broader E Town region with her partner and two children, including the child, and, by all accounts, the child is flourishing in that environment.  The father remains living in the Country B.  It is likely that he is in employment in Country G, although that is a little unclear, but, either way, he does not appear to now spend any time in Australia.  

6. I have already detailed the allegations in relation to the child and J.  However, shortly after they made those disclosures Ms H, who was then about 22 years of age, disclosed that the father had sexually assaulted her on, it seems, two occasions whilst the parties were cohabiting.  The father was subsequently charged with those offences, but in about March or April of last year was acquitted.  It appears the principal reason why he was acquitted was because two corroborative witnesses who Ms H said she had made disclosures to at about the time of the assaults, did not come up to proof.  It appears as though the District Court judge who was presiding over the trial gave the jury a warning in relation to the lack of corroboration, and, ultimately, the father was acquitted.

7. The proceedings in relation to the father’s assault of both J and the child have not commenced, although I am told, and it appears correct from the contemporaneous subpoenaed material, that the police regard the investigations as open.  It might be that the police and prosecutorial authorities are awaiting a time when J and the child are likely to be more resilient witnesses before commencing any proceedings against the father, although at this stage that is just conjecture.  Either way, the child C and, on the material before me, to a lesser extent the child J, have repeatedly made broadly consistent disclosures of the father’s sexual assault of them both.  In the material before me those disclosures have been made by the child to police officers, to his counsellor, Ms K, and to the family report writer.  They therefore cannot be dismissed as in any way, shape or form not having some factual basis, although no doubt any factual basis would need to be explored in the criminal trial. 

8. That then brings me to what it appears to me to be a significant matter in this case, namely the failure of the father to appear at the trial.  The father was advised of the trial listing in about November or December of 2014.  In January, he made application to attend at the trial electronically.  For reasons which I gave on 3 February 2015, I dismissed that application because, in my view, there was an insufficient basis not to require the father to attend personally.  The father subsequently at the conclusion of that hearing advised that he would not be appearing at the trial and he confirmed that by email communication on 12 February.  I will return to the significance of his failure to appear in due course.

RELEVANT STATUTORY PROVISIONS AND LEGAL PRINCIPLE

The statutory regime

1. Part VII of the Family Law Act contains the relevant statutory provisions dealing with children.  Section 60B specifies the objects of Part VII, and the principles underlying those objects in the following terms:

   (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.

   (2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):

   (a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

   (b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

   (c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

   (d) parents should agree about the future parenting of their children; and

   (e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

2. Section 61DA(1) of the Family Law Act provides that the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. In the event that, either because that presumption applies, or because it is otherwise in the child’s best interests that there be an order providing for equal shared parental responsibility, the court is obliged pursuant to section 65DAA(1) to then consider certain matters, including whether the child should spend equal time with each of the parents, or substantial and significant time.

3. However s.61DA(2) provides that the presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in either abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family) or family violence. Further, subsection 61DA(4) provides that the presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for its parents to have equal shared parental responsibility.

4. In this context is convenient to also advert to section 65DAC, which sets out the effect of a parenting order that provides for shared parental responsibility. By subsection (3) such an order is taken to require each of the persons subject to it to consult with the other person in relation to the decision to be made about any major long-term issue in relation to the child, and make a genuine effort to come to a joint decision about that issue. It can therefore be seen that the obligations which an order effecting equal shared parental responsibility imposes are potentially onerous.

5. Finally s.60CA provides that in deciding whether to make a particular parenting order, the court must regard the best interests of the child as the paramount consideration. The matters which a court must have regard to in determining the best interests of a child are set out in s.60CC.

6. In Mauldera & Orbel (2014) FLC 93-602 the Full Court had occasion to consider the interrelationship between s 60B and ss 60CC. At [72] the Court applied the principles enunciated in Wacando v The Commonwealth (1981) 148 CLR 1 in concluding that objects clauses, such as those contained within s 60B(1) can be used as an aid to the construction of words of legislation, but cannot be used to cut down the plain and unambiguous meaning of a provision if that meaning in its textual and contextual surroundings is clear (quoting from S v Australian Crime Commission (2005) 144 FCR 431 at [22] per Mansfield J). At [79] the Court concluded that the primary Judge could not attach greater weight to the factors referred to in s 60B than to the outcome of her s 60CC deliberations, and in doing so, her Honour had erred.

The standard of satisfaction required

1. S.140 of the Evidence Act 1999 (Cth) provides as follows:

   140(1) In a civil proceeding, the Court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.

   (2) Without limiting the matters that the Court may take into account in deciding whether it is so satisfied, it is to take into account:

   (a)      the nature of the cause of action or defence;

   (b)      the nature of the subject-matter of the proceedings;

   (c)      the gravity of the matters alleged.

2. In Neat Holdings Pty Ltd v Karajan & Holdings Pty Ltd (1992) 67 ALJR 170 at 170-171 the majority of the High Court stated:

   The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities.  That remains so even where the matter to be proved involves criminal conduct or fraud.  On the other hand the strength of the evidence necessary to establish a fact or fact on the balance of probabilities may vary according to the nature of what it is sought to prove.  Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary “where so serious a matter as fraud is to be found”.  Statements to that effect should not, however, be understood as directed to the standard of proof.  Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a Court should not likely make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct.

1. Therefore consistent with s140(2), in taking into account the gravity of the  mother’s allegations that the father has sexually assaulted Ms H, the child and J, I propose to carefully evaluate the evidence relied upon in support of such a contended finding and be particularly vigilant to identify and place reduced weight upon “inexact proofs, indefinite testimony or indirect inferences.”[1] 

   [1] See K v R (1997) 22 FamLR 592 and Re W (sex abuse – standard of proof) [2004] FamCA 768 at [15].

The notion of unacceptable risk

1. It is useful to consider the authorities which give some guidance as to what is an unacceptable risk, and particularly the relationship of any such risk with the orders that the Court is contemplating.  A useful starting point is the decision of the Full Court in N & S & The Separate Representative (1996) FLC 92-655, where in the well-known passage at 82,713-4, Fogarty J said:

   Thus, the essential importance of the unacceptable risk question as I see it is in its direction to Judges to give real and substantial consideration to the facts of the case, and to decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm to the child.  Thus, the value of the expression is not in a magical provision of an appropriate standard, but in its direction to Judges to consider deeply where the facts of a particular case fall, and explain adequately their findings in this regard.

2. In M v M (1988) 166 CLR 69, the High Court had occasion to consider the approach in Family Court proceedings where there are allegations of sexual abuse of a child. At [20]-[25] the Court said as follows:

   20. But it is a mistake to think that the Family Court is under the same duty to resolve in a definitive way the disputed allegation of sexual abuse as a court exercising criminal jurisdiction would be if it were trying the party for a criminal offence. Proceedings for custody or access are not disputes inter parties in the ordinary sense of that expression: Reynolds v Reynolds (1973) 47 ALJR 499; 1 ALR 318; McKee v McKee (1951) AC 352, at pp 364-365. In proceedings of that kind the court is not enforcing a parental right of custody or right to access. The court is concerned to make such an order for custody or access which will in the opinion of the court best promote and protect the interests of the child. In deciding what order it should make the court will give very great weight to the importance of maintaining parental ties, not so much because parents have a right to custody or access, but because it is prima facie in a child's interests to maintain the filial relationship with both parents: cf. J. v Lieschke [1987] HCA 4; (1987) 162 CLR 447, at pp 450, 458, 462, 463-464.

   21. Viewed in this setting, the resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the court's determination of what is in the best interests of the child. The Family Court's consideration of the paramount issue which it is enjoined to decide cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse. The Family Court's wide-ranging discretion to decide what is in the child's best interests cannot be qualified by requiring the court to try the case as if it were no more than a contest between the parents to be decided solely by reference to the acceptance or rejection of the allegation of sexual abuse on the balance of probabilities.

   22. In considering an allegation of sexual abuse, the court should not make a positive finding that the allegation is true unless the court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336, at p 362. There Dixon J. said:

   "The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters 'reasonable satisfaction' should not be produced by inexact proofs, indefinite testimony,
   or indirect inferences."

   His Honour's remarks have a direct application to an allegation that a parent has sexually abused a child, an allegation which is often easy to make, but difficult to refute. It does not follow that if an allegation of sexual abuse has not been made out, according to the civil onus as stated in Briginshaw, that conclusion determines the wider issue which confronts the court when it is called upon to decide what is in the best interests of the child.

   23. No doubt there will be some cases in which the court is able to come to a positive finding that the allegation is well-founded. In all but the most extraordinary cases, that finding will have a decisive impact on the order to be made respecting custody and access. There will be cases also in which the court has no hesitation in rejecting the allegation as groundless. Again, in the nature of things there will be very many cases, such as the present case, in which the court cannot confidently make a finding that sexual abuse has taken place. And there are strong practical family reasons why the court should refrain from making a positive finding that sexual abuse has actually taken place unless it is impelled by the particular circumstances of the case to do so.

   24. In resolving the wider issue the court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assessing the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child's welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access. In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access. Even in such a case, however, there may be a risk of disturbance to a child who is compulsorily brought into contact with a parent who has sexually abused her or whom the child believes to have sexually abused her. But that is not the issue in this case.

   25. Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. The degree of risk has been described as a "risk of serious harm" (A v A [1976] VicRp 24; (1976) VR 298, at p 300), "an element of risk" or "an appreciable risk" (Marriage of M (1987) 11 Fam LR 765, at p 770 and p 771 respectively), "a real possibility" (B. v. B. (Access) (1986) FLC 91-758, at p 75,545), a "real risk" (Leveque v Leveque (1983) 54 B CLR 164, at p 167), and an "unacceptable risk" (In re G. (a minor) (1987) 1 WLR 1461, at p 1469). This imposing array indicates that the courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child's paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.

3. In Harridge & Harridge [2010] FamCA 445 Murphy J, having referred to N & S & The Separate Representative (supra), proceeded to adopt the following list of inquiries in relation to risk assessment:[2]

   (1) What harmful outcome is potentially present in this situation?

   (2) What is the probability of this outcome coming about?

   (3) What risks are probable in this situation in the short, medium and long term?

   (4) What are the factors that could increase or decrease the risk that is probable?

   (5) What measures are available whose deployment could mitigate the risks that are probable?

   [2] Taken from B Mahendra “Psychiatric Risk Assessment in Family and Child Law” (2008) 38 Family Law 569.

4. I gratefully adopt that passage as helpful in cases such as these in analysing the asserted risk.

“No contact” orders

1. Plainly it is a serious matter to order that a child neither spend time with nor communicate with a parent.  Such orders properly ought be restricted to cases where that outcome is plainly mandated in the best interests of the child, and no other regime of orders is appropriate or workable.  Such orders are commonly employed where the Court is satisfied that a parent poses an unacceptable risk of harm to a child, which cannot be ameliorated by supervision of time and communication between that parent and the child.  The authorities germane to that situation were reviewed by the Full Court in Re Andrew (1996) FLC 92-692.

THE ISSUES

1. I identify the issues in this case as being, firstly, is the father an unacceptable risk of harm to the child and, particularly, a risk of sexual harm?  Secondly, what is the nature of any relationship between the father and the child, and what benefit, if any, would the child derive from the continuation of that relationship?  Thirdly, what impact would the mother’s orders, if made, have upon the child, particularly taking into account the absence of any alternative proposal by the father?  I will address those issues in that order. 

IS THE FATHER AN UNACCEPTABLE RISK OF HARM?

1. As to whether the father poses an unacceptable risk of harm to the child, the following points are relevant.  Firstly, there are the disclosures that have been made by both J and the child.  Whilst J’s disclosures are not in any great detail before me, the child’s are, as I have identified, to be found in at least three sources.  The first are the police records which were produced and tendered into evidence before me; the second are reports from Ms K, his counsellor; the third are disclosures that he made to Mr D, the family report writer.  I have already noted that in broad terms, those disclosures are consistent. 

2. However, as I observed during the course of the hearing, it appears as though, as is disturbingly a common practice, the subpoena to Queensland Police did not cause to be produced pursuant to it any of the original materials which would normally form part of the materials before a properly informed court.  Particularly, there was no provision pursuant to the subpoena of the relevant 93A interviews of the children, including Ms H, nor was there provided a copy of the father’s record of interview, it seems.  Those deficiencies are unfortunate but nonetheless cannot be glossed over.

3. The next point is in relation to the father’s alleged sexual assault of Ms H.  Of course, it cannot be doubted that Ms H made the allegations and that they were the subject of the prosecution by the police.  However again it must be borne in mind that the father was acquitted of those charges, albeit it appears because of a direction in relation to the absence of corroboration. 

4. The other matter which I should advert to in relation to the consideration of unacceptable risk is the fact that the father’s alleged abuse of the child has occurred on several occasions in several environments but, seemingly always with the feature that no other adult was present at the time.

5. Against those matters, the father’s absence from this trial assumes real significance, in my view.  It was made plain at the hearing of 3 February that the father was likely to be cross‑examined not only by reference to the allegations in relation to the child, but also the allegations in relation to J and Ms H.  Those matters lie at the very heart of the Court’s consideration of what is in the best interests of the child. 

6. The father was unable on 3 February to provide an adequate reason, in my view, for his inability to attend trial, and moreover he could not have been left in any doubt that at the trial, had it proceeded, he would have been seriously tested in relation to these concerning allegations.  Moreover, when one considers his affidavit material which deals with the allegations, it can best be described as scant.  Paragraph 10 of his affidavit of 3 November 2014 reads:

   [J], when staying over with [the child], had to wear a night nappy, and any touching below the waist done by me was only to ensure it was, indeed, being worn.

7. It does not appear as though that is a steadfast denial of any touching; rather, it appears to perhaps concede some touching, but seeks to justify it.  One would have thought, faced with grave and detailed allegations of the kind that the material raises, the father, even accepting that he was self‑represented, would have descended to a detailed and emphatic denial of any misconduct.  One would also have expected him to have attended the trial and to have ferociously defended the allegations that are made against him, given their gravity and the consequences of any finding consistent with them.  In my view, his failure to do so is a matter that I can take into account and, in the circumstances of determining whether the father presents an unacceptable risk of harm, give weight to.  I do give it weight.

8. Weighing all of those matters in the balance, and notwithstanding the gravity of the allegation involved and the serious consequences which flow from it, I am nonetheless persuaded on the balance of probabilities that the father presents an unacceptable risk of sexual harm to the child.  I acknowledge the inevitable consequences that flow from such a finding.

THE NATURE OF THE RELATIONSHIP BETWEEN THE CHILD AND THE FATHER   

1. I have already observed that the father has not seen the child now since October 2012.  The relationship between the child and his father, then, is a little unclear, but it appears to at least have then been intact and functional to some degree.  However, in Mr D’s family report, there are some observations by the child as to his present feelings towards his father.  They are contained in paragraphs 114, 122, 171 and 178 of the family report as follows:

   114. In terms of [Mr Sutton], [the child] indicated “I saw him last then I was 7”.  When asked why he hasn’t seen him since he readily admitted, “Because he put me up against the wall and grabbed me by the neck” adding “As well, he grabbed me at my privates”.  He said “I was really scared of him and I told him to stop.  He did but he didn’t apologise”.  After that he said “I didn’t want to see him because I didn’t feel comfortable.”

   …

   122. In terms of seeing his father, [the child] said “I don’t want to see him, I’m just not comfortable”.  I then put it to him was this because he felt safe or otherwise and he said “I don’t think I’m safe”.  I then asked him if he felt safe would he like to see him, he said “Yes, then probably I would”.

   …

   171. When it was put to him, given the circumstances as advance to me by [the child], of:

   ·his fear and trepidation about him,

   ·his unwillingness to be interview he company of his father and

   ·how he now doesn’t feel safe,

   moving forward to such an arrangement would be unlikely and he would need to spend some considerable time drafting a set of orders to be considered.

   …

   178. From the information provided to me, it appears prior to the allegations raised by the child, the relationship which existed between [the child] and his father was in place albeit not particularly strong and this was due to the episodic and infrequent contact between this boy and his father.

2. It can be seen, therefore, that the child C experiences a real, tangible fear of his father, albeit that he is more ambivalent in the event that he can be assured – convinced is perhaps a better word – that spending any time with his father would not pose any form of risk to him.  Nonetheless, it appears as though the child’s relationship with his father has been severely affected and perhaps virtually destroyed by the child’s fervent belief that his father has sexually abused him.  That is a matter which is necessarily of great significance in this case, given that we are talking about a nine year old child.

THE IMPACT OF MOTHER’S PROPOSED ORDERS

1. The third issue is what impact the mother’s orders would have upon the child.  The first matter to observe is that the orders which she seeks would largely coincide with the child’s wishes.  The second matter which I identify as relevant to this consideration is the absence of any real alternative proposal by the father.  He appears to have been unable to really articulate – ever – any practical alternative to the central orders sought by the mother.  To the extent that he may have sought supervised contact with the child, he has not appeared at trial to argue it, did not appear to seriously press for it either in the family report interview or the orders which he sought, and in any event, it is difficult to see on the material how it would be practical, particularly given the father’s apparent continued absence from Australia.

2. The third matter relevant to the mother’s orders is what effect any communication regime between the father and the child would have.  The ICL proposed Skype communication, and, ultimately, that appeared to find a degree of favour with the mother.  However, both the ICL and the mother were ardent in submitting that such communication should only be at the option of the child.  If these proposed orders – being sole parental responsibility to the mother, the child living with the mother, spending no face‑to‑face time with the father but having the ability to re‑establish some form of relationship via Skype at his option – were made, it can be seen that they would likely have little, if any, impact upon the child, and certainly not an adverse one, given that he has not seen his father or communicated with him now for in excess of two years.

OTHER S60CC CONSIDERATIONS

1. Those are the issues which I have identified as being the principal ones in this case.  However, I am cognisant that there are a long list of considerations in section 60CC which I am obliged to consider.  I have considered them, and I have attempted to distil the important ones into the issues which I have identified.  However, I should advert to a couple of other matters in passing.  The first is the additional consideration in section 60CC(3)(c) insofar as the father has a long history of intermittent, spasmodic time with the child prior to October 2002.  It could not be said that in any way, shape or form, the father has enjoyed to the fullest extent possible the opportunities which were then available to him to spend time with or communicate with the child.

2. The next matter is section 60CC(3)(ca), in that it appears the father has for some years now not made any financial contribution to the costs of raising the child.  Next, the consideration in section 60CC(3)(h).  Here the child is of Aboriginal heritage.  That is not in dispute.  It derives from his mother’s side of the family.  She ensures that he enjoys that culture. 

3. Next, section 60CC(3)(j) and (k) are relevant, involving family violence and family violence orders.  There has been violence between the father and the mother some years ago, involving him striking the mother with an ice cube tray.  There has also been family violence perpetrated against the child directly by a former partner of the father’s.  I acknowledge those matters of fact.  However, this does not appear to be a case which is likely to be determined, even to any degree, by those matters. 

4. As to section 60CC(3)(m), I identify the failure of the father to involve himself in this trial as a significant matter, as I have previously identified.

PARENTAL RESPONSIBILITY

1. The father does not seek any allocation of parental responsibility.  In any event, it would be unrealistic.  The father has no knowledge or, it appears, real interest in the child’s day‑to‑day life or, indeed any capacity to influence matters in his day‑to‑day life, or relevant to long‑term issues.  He lives in the Country B, works in Country G, and spends no time in Australia.  It is obvious that parental responsibility must lie with the mother in those circumstances.  There will, therefore, be an order granting the mother sole parental responsibility.

WITH WHOM SHOULD THE CHILD LIVE?

1. The father does not seek any order that the child live with him.  But for two periods of one week of holidays, he never has lived with the father, and has always lived with his mother.  It is patent that there can only be an order that the child live with the mother.  There will, therefore, be such an order.

WHAT TIME SHOULD THE CHILD SPEND WITH THE FATHER?

1. I have made a finding that the father presents an unacceptable risk of harm to the child.  That precludes any unsupervised time between the father and the child for the foreseeable future.  The child has, in any event, not spent any time with the father since October 2012.  Moreover, the child is, as I have identified, fearful of the father.  Additionally, the father has no proposal that he has ever articulated for spending even supervised time with the child.  The question of distance is relevant, and the fact that in the past the time that he has spent with the child has been spasmodic, irregular and short, are also relevant.

2. There are practical questions which would arise in the event that any supervised time were permitted.  Firstly, it would involve a degree of negotiation between the father and mother as to when the father might choose to exercise any such entitlement.  Next, there would be the problems that the child may not, or may not sufficiently, feel safe in the supervised environment.  In any event, as I have said, the father does not seek it or, at least, he is not here to argue for it.  In my view, all of those matters taken together weigh the best interests of the child as not spending face-to-face time with the father.

3. I am conscious that that necessarily means that the nature of the relationship which the child presently has with the father will continue to progressively erode.  However that is a matter that has been; and will continue to be, substantially caused by the father.  He lives overseas, works overseas, chooses not to travel to Australia, in any event, has not engaged with his child.  There will be no order permitting the father to spend time with the child – whether supervised or face-to-face.

HOW, IF AT ALL, SHOULD the child COMMUNICATE WITH THE FATHER?

1. The mother proposes – albeit perhaps with some reluctance – that she would be prepared to supervise Skype time between the child and the father, provided that it be at the child’s choosing whether or not to ever, or when, to initiate such communication.  I identify that as being a safe proposal.  It could expose the child to no risk of harm.  It is necessarily going to be consistent with the child’s wishes because it could only be child initiated.  Finally, given the father’s international work location and residence, it is in reality the only feasible way in which the father could communicate with the child in any event. 

2. The final matter is that of cards and gifts.  That was not opposed by the mother.  True it is the father does not seek it but in the past he has apparently sent gifts to the child via his sister.  There is no reason to use that circuitous route, and I will make orders requiring the parties to keep each other advised of both their current email and postal address.

I certify that the preceding forty-nine paragraphs (49) are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 12 February 2015.

Associate: 

Date:  12 February 2015