Jenkins and McInnes - [2012] FMCAfam 477

FEDERAL MAGISTRATES COURT OF AUSTRALIA

JENKINS & MCINNES

[2012] FMCAfam 477

FAMILY LAW – Parenting orders – unacceptable risk of abuse – father sexually abused daughter from previous relationship – risk to son in current relationship – when should supervision cease.

Family Law Act1975 ss.60B, 60CA, 60CC, 61DA, 65DAA

MRR v GR [2010] HCA 4

Applicant:

MR JENKINS

Respondent:

MS MCINNES

File Number:

WOC 618 of 2010

Judgment of:

Altobelli FM

Hearing dates:

18 & 19 August 2011, 7 May 2012

Date of Last Submission:

7 May 2012

Delivered at:

Sydney

Delivered on:

30 May 2012

REPRESENTATION

The Applicant in person (self-represented)

Counsel for the Respondent:

Mr Wong

Counsel for the Independent Children’s Lawyer

Mr Alexander

ORDERS

That the mother have sole parental responsibility for the child [X] born [in] 1998 (“[X]”).
That the mother inform the father of the following:
2.1 any change of address or contact details for [X];
2.2 any change of school attended by [X]; and
2.3 any hospital admission or serious medical condition of [X] with such information to be provided as soon as possible.
That, to the extent necessary, the mother authorise any school or medical practitioner to provide to the father:
3.1school reports, notices or other communications related to [X]; and
3.2medical reports.
That [X] live with his mother.
That neither party criticise the other or cast the other party in an unfavourable light in the presence or hearing of [X] or in a manner likely to come to his attention.
That within 2 months the father enrol in, and within 12 months complete, courses as follows:
6.1an anger management course such as ‘Enough is Enough’; and
6.2a course approved by Ms S for perpetrators of sexual offences.
That the mother facilitate the enrolment, and completion, by [X] of a course intended to provide strategies for protective behaviours such as the ‘Touchstone Program’ conducted by Relationships Australia.
That the mother facilitate such counselling for [X] as is recommended by Ms S to explain to [X]:
8.1.1 why his time with his father is to be supervised; and
8.1.2why he is to attend a course as set out in order (7) above.
That [X] spend time with his father as follows:
9.1 until [date omitted] 2014, each alternate Sunday for two hours with such time to be supervised PROVIDED THAT such arrangements will continue until such time as the father and [X] have completed the courses and counselling set out in orders (6) and (7) above (“the courses”); and
9.2 from the later of [date omitted] 2014 or the completion of the courses, each alternate Sunday for four hours.
That the mother facilitate email and telephone communication between [X] and his father:
10.1    As to email, at any reasonable time, and as to telephone, as per 10.2 and 10.3 below;
10.2    at any time requested by [X]; and
10.3    each Wednesday between 6.30 pm and 7.00 pm
with such communications to be private.
That the father be restrained from communicating with any of [X]’s peers or friends at the time he is spending time or communicating with [X].
That the mother forthwith do all things necessary to have the father entered on [X]’s birth certificate as his father.
That the father not communicate with [X] by way of SMS or text message, or by Facebook or Skype.
That the parents do all things necessary to enable supervised contact to take place in accordance with these orders. Without limiting the generality of this order they are to consider the use of both publicly funded and privately funded supervisor services. Any cost of supervision is to be borne by the father and mother equally.
That the Independent Children’s Lawyer not be discharged until one month after these orders have been made, so that he might have the opportunity to assist the parents with any difficulty the have with arranging supervision.

NOTATION

a)Orders 1, 4, 5, 6, 7, 8, 9, 11 and 12 are by consent of all parties.

IT IS NOTED that publication of this judgment under the pseudonym Jenkins & McInnes is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

WOC 618 of 2010

MR JENKINS

Applicant

And

MS MCINNES

Respondent

REASONS FOR JUDGMENT

Introduction

This case is about [X], who is 13 years old, and turns 14 in July 2012. It is about under what circumstances [X] should spend time with his father.

Background

[X]’s father is the applicant, he is 43 years old and is an [occupation omitted] living in the [omitted] region of NSW. The father is also a part time student at [university omitted]. [X]’s mother is the respondent, she is 40 years old, is an [occupation omitted] and also lives in the [omitted] region of NSW. The relationship between the parents, such as it was, ended in January 2008. They apparently met in 1996. There was a brief period of cohabitation in this period. By the time the matter reached its last day of hearing before me, on 7 May 2012, the issues had narrowed considerably and I will focus on those issues only. These issues are best described by reference to a minute of order proposed by the Independent Children’s Lawyer which is reproduced in full in the schedule to these reasons.
Order 1 proposes sole parental responsibility. There is no dispute about this.
Order 2 sets out information to be provided by the mother to the father. There is an issue about this that I will discuss below.
Order 3 is also about the provision of information to the father, and there is also an issue about this that I will discuss below.
Order 4 provides that [X] lives with his mother. There is no issue about this.
Order 5 is a non-denigration order in respect of which there is no issue.
Order 6 requires the father to enrol in, and complete, an anger management course, and a course for perpetrators of sexual abuse. The only issue about this is that the father wants this to be subject to reasonable affordability. I am not prepared to add this condition as the courses are so important, but I would be very surprised if the courses in question are unreasonably expensive.
Order 7 refers to [X] undertaking a course to develop protective behaviours. There is no issue about this.
Order 8 refers to the father obtaining counselling, and again there is no issue about this.
Order 9 refers to [X] attending counselling to help him understand why his time with his father is being supervised. There is no issue about this.
Order 10 is the contact order. The Independent Children’s Lawyer, and father proposed that the order should be in the terms set out in the schedule which provides for supervised contact to cease in 2013. The mother proposes, in essence, that the dates referred to should be 2014, that is, one year later. Thus the major issue for determination in this case is for how much longer supervised contact continues.
Order 11 is about telephone communication. There is a dispute about aspects of this that I will discuss below.
The mother proposes a number of additional orders, the effect of which are as follows:
·    That the father be restrained from contacting [X] by any means other than as stipulated in these orders and, specifically, Facebook, Skype and email. Both the father and the Independent Children’s Lawyer oppose this.
·    The father be restrained from communicating with, or attending any school that [X] is enrolled in. Both the father and the Independent Children’s Lawyer oppose this.
·    The father be restrained from communicating with any of [X]’s friends or peers at the time that he is spending time or communicating with [X]. There is no issue about this.
The father proposes orders that his name be placed on [X]’s birth certificate. There is no issue about this.

Evidence and course of hearing

The father gave evidence and was cross examined on 18 August and 19 August 2011. The case was adjourned part heard to 7 May 2012. In the meanwhile a Part 15 expert’s report was prepared by Dr R. Dr R gave oral evidence. At the conclusion of his evidence it was agreed between the parties that given the narrowing of issues in this case, there would be no forensic benefit in the Court hearing further evidence. All the parties felt that the Court could adjudicate the issues by reference to the affidavits filed by each party, the Family Report, the Part 15 expert’s report and the documents tendered in evidence. I agree that this was entirely appropriate. Accordingly the material I had regard to in formulating these reasons is as follows:
·    The Family Report of Ms S released 4 August 2011.
·    The Part 15 expert’s report prepared by Dr R, dated 30 April 2012.
·    The mother’s affidavit sworn 5 August 2011.
·    Affidavit of Mr J sworn 15 August 2011.
·    Affidavit of Mr C sworn 6 May 2011.
·    Affidavit of [Y] sworn 17 August 2011.
·    Affidavits of the father sworn 15 August 2011.
·    Affidavit of Ms D sworn 8 August 2011.
·    Affidavit of Mr W sworn 5 August 2011.
·    Various documents tendered in evidence from the material produced on subpoena.

Applicable law

In determining parenting matters under Part VII of the Family Law Act the Court must regard the best interests of the child as the paramount consideration: s.60CA.
The objects and principles of Part VII are set out at s.60B:
60B Objects of Part and principles underlying it
(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).
(3)    For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a)    to maintain a connection with that culture; and
(b)    to have the support, opportunity and encouragement necessary:
(i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii)    to develop a positive appreciation of that culture.
At the very core of the new Part VII of the Family Law Act 1975 is the creation of a presumption of equal shared parental responsibility in s.61DA. Section 61DA provides:
61DA Presumption of equal shared parental responsibility when making parenting orders
(1)    When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(2)    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:
(a)    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
(b)    family violence.
(3)    When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4)    The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
If the presumption applies, I am required to consider certain things:
65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances
Equal time
(1)    If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a)    consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b)    consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c)     if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Substantial and significant time
(2)    If:
(a)    a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b)    the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and
the court must:
(c)     consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d)    consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e)     if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
(3) will be taken to spend substantial and significant time with a parent only if:
(a)    the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii)    days that do not fall on weekends or holidays; and
(b)    the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii)    occasions and events that are of particular significance to the child; and
(c)     the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4)    Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5)    In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a)    how far apart the parents live from each other; and
(b)    the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c)     the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d)    the impact that an arrangement of that kind would have on the child; and
(e)     such other matters as the court considers relevant.
Because s.65DAA refers to the best interests of the child I must then go back to consider s.60CC which specifies how I must determine what is in a child’s best interests.
60CC How a court determines what is in a child’s best interests
Determining child’s best interests
(1)    Subject to subsection (5), in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2)    The primary considerations are:
(a)    the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)    the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
Additional considerations
(3)    Additional considerations are:
(a)    any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
(b)    the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii)    other persons (including any grandparent or other relative of the child);
(c)     the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
(d)    the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii)    any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e)     the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
(f) the capacity of:
(i) each of the child’s parents; and
(ii)    any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g)    the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
(h)    if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)    the likely impact any proposed parenting order under this Part will have on that right;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
(j) any family violence involving the child or a member of the child’s family;
(k)     any family violence order that applies to the child or a member of the child’s family, if:
(i) the order is a final order; or
(ii)    the making of the order was contested by a person;
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m)    any other fact or circumstance that the court thinks is relevant.
In MRR v GR [2010] HCA 4 the High Court said
8. Sub-section (1) of s 65DAA is headed "Equal time" and provides:
"If a parenting order provides (or is to provide) that a child's parents are to have equal shared parental responsibility for the child, the court must:
(a)    consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b)    consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c)     if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents." (emphasis added)
Sub-section (2) makes provision for where a parenting order provides that a child's parents are to have equal shared parental responsibility for the child (par (a)) but the Court does not make an order for the child to spend equal time with each of the parents (par (b)). In such a circumstance the Court is obliged to:
"(c)   consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d)    consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e)     if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents."
Sub-section (3) explains what is meant by the phrase "substantial and significant time".
9. Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the Court determine that question. Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the court considers relevant", "[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents".

A little later in the judgment the High Court said:
13. Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)). It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order.
I will consider the issues in this case by reference to the considerations listed in section 60CC of the Family Law Act.

Meaningful relationship

[X] has a meaningful relationship with his father. This is not disputed as between the parents. It is clear from the Family Report and the Part 15 expert’s report. This meaningful relationship has continued notwithstanding that [X]’s contact with his father has been supervised since 5 August 2010 when orders were made by consent in the Local Court of Wollongong to that effect. The only threat to this meaningful relationship is if there is no contact at all. No one is proposing that, but there are issues about unavailability of supervisors which means that there is a risk that the meaningful relationship will be lost unless appropriate supervision can be found.

Protecting [X] from the risk of harm

Implicit in the father’s proposal for supervision until 2013 is a concession that there is a risk of harm to [X]. His consent to the orders proposed by the Independent Children’s Lawyer reflects that. The issue for the Court is the extent of that risk of harm, and whether this results in supervised contact being maintained until 2013 as the father and Independent Children’s Lawyer propose (when [X] will be 15) or 2014 as the mother proposes (when [X] will be 16). Inherent in the father and the independent children’s lawyer’s case is that the risk of harm to [X] is mitigated by a number of factors including his gender and age, [X] undertaking a protective behaviours course, [X] undertaking counselling, the father attending an anger management course, the father attending a course for perpetrators of sexual offences and also, of course, supervision until July 2013.
The mother’s case is that even these factors do not mitigate the risks, or address her concerns about the risk of abuse.
It is possible for me to make certain findings relevant to the issue of risk of abuse to [X]. Both the mother and [Y] (the 22 year old daughter of the father from a previous relationship) filed detailed affidavits in which they give evidence about a series of sexual assaults perpetrated by the father on [Y]. [Y] lived with her father and biological mother from birth to age 7, and then with her father only until age 13. She deposes to the sexual assaults commencing at age 10, and her descriptions of the sexual assaults in 2002 are detailed and vivid. These allegations were reported to JIRT and during the course of the JIRT interview [Y] made disclosures. In 2010 [Y] obtained the relevant Department of Community Services file, and then made it available to the mother in these proceedings. This resulted in the contact that the father had up until that point enjoyed with [X] being converted from unsupervised to supervised.
In the circumstances of this case, it is not necessary to go into detail about these sexual assaults. The evidence of both [Y] and the mother was unchallenged by the father. Indeed, he made it abundantly clear that he was not going to cross-examine his daughter [Y] in relation to these allegations.
The issue for the Court is assessing the nature and extent of the risk to [X] arising out of these events. Dr R’s report was of great assistance in this regard and I will set out some relevant and important passages from his report (lines 650-841):
His relationship with [Ms McInnes] was not particularly close and she lived primarily at her mother’s house. [Mr Jenkins] did maintain regular contact with [X]. They appeared to have a strong bond and enjoy each other’s company. [Ms McInnes] appeared to be supporting a certain amount of contact between [X] and [Mr Jenkins]. However, when [Mr Jenkins] took legal action to ensure that [X] was awake early enough for him to pick him up and he had concern that [X] may have been on the computer too much. It would appear that this move then backfired dramatically for him. This then lead to [Ms McInnes] and [Mr Jenkins] being involved in mediation. [Ms McInnes] reported incidents that had happened between them and this then led to DOCS becoming alarmed and taking action to prevent and restrict contact with [X] based on violence that had occurred, as well as the alleged sexual abuse of [Y].
Despite the range of problems [X] does enjoy seeing his father and would like to be able to spend more time with him in an unsupervised way. I believe that [X] does have a positive attachment and attitude towards his father. I also believe that [Mr Jenkins] cares a great deal about [X] and does want to be involved in his life. However, I do have significant concerns about [Mr Jenkins]’s parenting capacity. He does have a history of significant allegations with regard to domestic violence involving [Ms McInnes] and alleged sexual abuse of [Y] and [Y]’s friend as well as conflict and breakdown of the relationship with [Z]. [X] at this time to the mother’s credit doesn’t know about the sexual abuse issues that have involved his father and half-sister. It would seem that [Mr Jenkins] has had difficulty relating to teenage children and this could be extremely problematic for his relationship with [X] as [X] becomes a little more independent and able to be confrontative. I therefore believe in the absence of significant acceptance, insight and contrition about the abuse of his daughter and therefore potential for harm to his son that he is an unacceptable risk to [X] without safeguards such as supervision.
…
2. The mental health of [Mr Jenkins].
From an AXIS I perspective I didn’t find any evidence to suggest that he had significant psychosis or anxiety or depression. However, on AXIS II; there was significant evidence to support possible diagnosis of antisocial personality disorder. He has a history of drug use in his younger years, involving ice and marijuana. He used ice up until 34 and marijuana until the age of 38. He has had at least two significant driving offences. He was charged with assaulting another driver. There were serious sexual abuse allegations against him with regard to his daughter and his daughter’s friend. He’s had no stable relationships. There has been alleged domestic violence. His daughter will not have any contact with him.
…
POSSIBLE OUTCOMES
1. Should supervised contact continue on a fortnightly basis for two hours, I believe that this would eventually become problematic and break down. The benefits are that there is security for [X] however, the supervision is very restrictive and is likely to become burdensome and unworkable in the longer term.
2. Should unsupervised contact be ordered I believe that initially [X] would enjoy this extra time with [Mr Jenkins] and their relationship would strengthen. However, the anxiety in the mother would increase because of her concerns about [Mr Jenkins]’s behaviour and potential harm to [X]. I also do have concerns about [Mr Jenkins]’s ability to deal with and provide stable parenting. I am not aware of him taking responsibility for his breakdown of the relationship with [Z] or with [Y]. He doesn’t appear to have taken responsibility for what appear to be substantiated allegations of sexual abuse with [Y]. I am not aware of him having completed any offender programs. He does have a significant history of antisocial behaviours. I have major concerns about his insight into his behaviours and potential harm. I therefore, believe that substantial contact could present an unacceptable risk to [X]. This may be difficult for [X] to understand because he doesn’t fully comprehend the significant issues that have occurred with [Mr Jenkins]’s older children.
3. The other alternative is for there to be some restricted or limited unsupervised contact. It is conceivable that [X] may be soon at an age where some unsupervised contact perhaps in a public place could occur for a short period of time that would be relatively safe. However, there would need to be some understanding that safeguards that had been achieved prior to such contact taking place. I believe that [Mr Jenkins] would need to have completed successfully a sexual offenders program. He would also need to have completed an anger management program such as outlined by Ms S. In addition [X] would need to have completed a protective behaviours program and would need to be aware of the reasons for in the breakdown of the relationship with [Y].
…
RECOMMENDATIONS
1. I recommend that the child continue to reside with [Ms McInnes] whom I believe is a capable caring parent and who has been providing well for [X]. She has been attempted a well balanced in her approach to managing the situation between [X] and the father. Surprisingly she hasn’t attempted to contaminate his relationship with the father even though she has major worries about the father’s potential for harm.
2. I recommend that supervised contact continue for at least the next 12 months. The supervised contact should continue until such time as the child is old enough to make decisions on his own which I believe would be 16 years of age. Or alternatively 15 if the father has successfully completed an anger management course such as 'Enough is Enough' in the [omitted] area and additionally an approved perpetrator course for sexual offenders.
3. I recommend that neither parent denigrate the other parent in front of the child.
4. I recommend that both parents have some individual supportive
counselling to help them with their respective situations.
5. Neither parent should use any physical punishment or drugs and alcohol with the child.
6. The child will need to know that is why he is doing a child protection course in order to be aware of what are appropriate and inappropriate boundaries that could be breached. [X] needs to have some explanation to him from an independent professional about why there have been some restrictions on seeing his father. This would need to be done by a professional, perhaps even Ms S, rather than the mother so that this is not seen as a spiteful act by the father of the child.
I agree with Dr R’s characterisation of the sex abuse allegations as substantiated.
Dr R gave oral evidence on 7 May 2012. He explained that the father’s history of sexual assault and family violence meant that there was an unacceptable risk of abuse to [X] if contact was unsupervised, except to the extent that he referred to in his report. He rejected the suggestion that sexual assault was a gender specific phenomenon and that therefore just because the father had sexually assaulted his daughter, it was not true that there was a risk to his son. Moreover Dr R was clearly concerned about the father’s propensity to family violence and his struggle to manage difficult situations. Dr R acknowledged that the sexual assaults were some time ago but was concerned about the absence of any insight by the father in relation to the impact of his acts on [Y]. He noted the absence of any acknowledgement of responsibility, or apology to the people most affected by his behaviours. Dr R thought that father was, at times, minimising these matters. These concerns about the father need to be considered in the light of the other recommendations that Dr R makes, and [X]’s emerging capacity to protect himself, especially after he has undertaken training in this regard.
Dr R agreed in cross-examination, however, that a person with antisocial personality disorder has poor prospects of rehabilitation. He agreed that the father had ample opportunity before the hearing to demonstrate insight, culpability and contrition, but had not. He also accepted the adverse cumulative impact of all of this on the mother.
The father, through his cross-examination of Dr R, sought to demonstrate that since the events in question there had been no further issues, and that he had moved his life “in the right direction”.
I do not accept that there is any evidence from the father demonstrating that he has taken responsibility for what he did to [Y] when she was a child, before the final hearing. Even at the final hearing the expressions of remorse from the father must be seen in the context of the proceedings involving [X]. Moreover the risk to [X] must be understood in the context of the father’s diagnosis as suffering from antisocial personality disorder. Whilst there is less evidence before the Court that this is an ongoing concern, it is nonetheless a relevant factor.
Dr R was prepared to recommend unsupervised contact at age 15, subject to the other matters referred to in his recommendations, though he clearly acknowledged that the mother’s concerns, and the impact on the mother of these orders, were a highly relevant factor given the closeness of her relationship with [X]. Dr R acknowledged that, in effect, if the Court was convinced that the mother could not cope with contact at age 15, this was a relevant factor to justify the making of the order at age 16. This is a consideration I will have regard to below.
If I were to decide this case solely by reference to the risk of harm to [X] from the father, I would order that unsupervised contact commenced at age 15 in 2013, whilst implementing all of Dr R’s other recommendations. I consider the protective measures proposed, ie, counselling and training for [X], courses to be undertaken by the father and [X]’s developmental stage, all adequate protective mechanisms greatly mitigating the risk of harm to [X].

[X]’s views

I am satisfied that [X] has expressed quite a clear view that he wants to spend more time with his father. I accept in this regard the evidence of the family consultant, the part 15 expert, and the father himself. I further accept that [X] would like the contact to be unsupervised. However I place minimal weight on these views in circumstances where:
i)[X] does not know about the sex abuse allegations relating to his step-sister; and
ii)there are such significant risk issues. One matter that needs to be recognised in the context of [X]’s views is that at his age, his autonomy is emerging. He is about to enter a stage of his life where he will begin to individuate and want to make more decisions in relation to his life.

Child’s relationship

[X]’s relationship with his mother is a very close one. This is apparent from both the family and the part 15 expert’s report. For example paragraph 20 of the family report states:
Ms McInnes acknowledged that [X] is protective of her. She stated that [X] withdraws when he is upset but that he eventually will talk with her. She said that she does not ever make [X] do anything that he does not want to do. She described [X] as honest, trustworthy and smart. She said he likes X Box, sport and bowling and that he is easy going, always laughing, and enjoys spending time with his friends.
Thus, [X] is protective of his mother and even though I did not see the mother give evidence in person, all of her other evidence leads me to conclude that she is protective of him as well. The family consultant described [X] as a quiet and shy boy. He nonetheless “stands up for her”, ie, defends the mother should the father be critical of her (Family Report, paragraph 35). These are important observations in a case where I must consider the impact on [X] of his mother being distressed by the making of an order that she considers exposes him to risk. Even though I’m sure the mother would do all that she could to protect [X] from her feelings about the orders I make in this case, the very nature of their relationship is that [X] will pick up her concerns, and be defensive of her.
[X]’s relationship with his father is also good. This too is apparent from the Family Report and the part 15 expert’s report. However these sources also indicate that he is very much aware of the parental conflict, and has been exposed to the father’s denigration of the mother from time to time. Notwithstanding this [X] retains a good relationship with both parents.

Willingness and ability to facilitate and encourage ongoing relationship

The mother has consistently taken, and acted on, the view that [X] should have a relationship with his father. To the extent that she has acted conservatively and cautiously about contact, this is entirely consistent with her concerns about the father. It is most significant to note that in a case like this, despite the very serious allegations against the father, [X] still has a good relationship with him. This is evidence of the mother’s willingness to facilitate and encourage that relationship. It is also significant that the mother has not told [X] about the allegations against the father.
Whilst the father has, at times, said things that were in substance derogatory of the mother (eg. the evidence of the SMS messages, what [X] said to both the family consultant and the part 15 expert), this has not had the effect of in any way changing [X]’s relationship with his mother. I think the father’s actions in this regard are insensitive, evidence a lack of insight and poor parenting on his part, but do not demonstrate a lack of his willingness to support [X]’s relationship with his mother.

Likely effect of change

None of the orders proposed will lead to major changes for [X]. Should, however, the parents be unable to satisfactorily deal with the issues of supervision to which I will shortly refer, there is a change that both parents need to be conscious of. I have already referred to [X]’s emerging autonomy as a young adult. He will individuate and want to have a greater say in relation to his own life. Both parents need to recognise the reality of this. The father needs to understand that one possibility is that a move to unsupervised contact too early will lead to [X] resisting. The mother needs to recognise that if contact does not happen, or if it happens too late, [X] may well seek his father out in other ways. [X]’s growing autonomy is a certainty in this case. Predicting its impacts is an uncertainty.

Practical difficulty and expense

At the final hearing it was common ground that the existing supervision arrangements could not subsist beyond any final orders. The difficulty in arranging appropriate supervision is a factor that points towards a shorter, rather than longer, order before contact becomes unsupervised. I accept that cost considerations are highly relevant to both parents. I see no reason why each should not pay one half of the cost. The Court cannot be prescriptive about who supervises – the parents must agree about this, with the assistance of the Independent Children’s Lawyer. They must source out the most appropriate but affordable services available to them for the period until contact becomes unsupervised. There is a strong incentive for both of them to do this quite independently of mere compliance with these orders. I’ve already foreshadowed the emerging autonomy of [X]. He wants to spend time with his father. If this is frustrated because his parents can’t work this out, then I predict it is the mother who will be most confronted by the challenges of [X] asserting his independence. There is as much incentive on her to find a constructive solution to the supervision problem, as there is on the father.
I understand that there are affordability issues for both parents when it comes to the cost of supervision. They must make this a priority. There appear to be no other issues of practical difficulty and expense on the facts of this case.

Parental capacity

There is no issue about the mother’s parenting capacity. The issues about the father’s parenting capacity largely flow from the evidence, particularly that of Dr R. He probably suffers from anti-social personality disorder though, if the father be believed, the symptoms of this have moderated significantly. I have found that there is an unacceptable risk of abuse which arise out of the sex abuse allegations made by [Y]. He has not satisfactorily addressed this issue. Notwithstanding that, the orders he seeks are still within broad parameters acceptable and child focused.

Parental attitudes

There is no criticism of the mother’s attitude. There is certainly evidence that would raise concern about the father’s attitude to children, and to the responsibilities of parenthood. The sex abuse allegations made by [Y] paint a very poor picture of the father’s attitude towards her, and to his responsibilities as a parent. The same may be said about his denigration of the mother in [X]’s presence, as well as the family violence that was perpetrated by him. Nonetheless, again within the broad parameters of the order sought by both parents, this is not a consideration that is determinative.

Family violence

As previously adverted to, there is evidence to suggest that the father was violent towards the mother during their relationship. And again, having regard to the parameters of the orders sought by both parents, this consideration is not determinative.

Making the order least likely to lead to further proceedings

I accept that unless the parents can find a mutually acceptable and affordable supervision arrangement, the matter will probably return to court. There is also the possibility that as time goes by and [X] becomes more autonomous, he will start to express views about how and when he spends his time with his father. These are all possibilities that are unavoidable, and cannot really be dealt with in these orders.

Orders in the best interests of [X]

Having regard to all of the matters that I have referred to above, the choice I need to make is whether supervised contact ceases on [date omitted] 2013, or on [date omitted] 2014. At the end of the day, the factor that tips the balance in favour of the mother’s proposal is the concerns I have about how she would cope in an emotional sense with making an order that provides for supervised contact to cease on [date omitted] 2013, one year earlier than she considers appropriate. Such is the nature of her relationship with [X] that, if I make the 2013 order, I am satisfied that she will be distressed and that this distress will be inadvertently passed on to [X]. The consequences of this are difficult to predict, but on one scenario [X] will detect his mother’s concerns and distress and act in such a way as to protect her. This is an inappropriate role for a teenage boy. There is also the risk that he will refuse to comply with the order for contact, a matter that would be most counterproductive even from the father’s perspective. At the end of the day, the course of least risk, and the one that is most likely to enhance the prospects of [X]’s ongoing relationship with his father is, in fact, to have the supervised contact cease in 2014.
A number of other issues were in dispute as between the parties. For example, the mother sought an order that the father be restrained from contacting [X] by email, Skype or Facebook. Her preference was that the father’s communication with [X] be by way of a telephone call, the frequency of which I will discuss below. The father and Independent Children’s Lawyer oppose that. The father agrees that he will not communicate with [X] by SMS, but would prefer that there be email contact, subject to be reassured that the mother will not impede [X]’s access to a computer for this purpose. In the circumstances, I am satisfied that that is a reasonable compromise and is in the best interests of [X]. There may be quite lengthy periods where the father and [X] do not see each other, so it is important and appropriate that there be an appropriate form of communication, provided that this communication is not misused. If the father has email contact, it is not necessary to have Facebook or Skype communication. However, when one has regard to the generation of which [X] is a part, the Court senses a certain futility in making the orders that it will nonetheless make which is to the effect that the father not communicate with [X] by way of Facebook. It may well be that in the exercise of [X]’s autonomy, he will make up his own mind in this regard.
The mother seeks orders that the father be restrained from communicating with or attending any school that [X] is enrolled in or attends on from time to time. In circumstances where the mother has sole parental responsibility, it is important for the father to be able to obtain information in relation to [X]’s schooling and education. The restraint that she seeks in this regard is unreasonable, and overly protective. However, in the circumstances of this case where such serious allegations have been made against the father about sexual abuse issues, it is entirely appropriate that he be restrained from attending any school that [X] attends. I see no reason, however, for the mother not to have to notify the father about any change of address for [X], or change of school. Given that she will have sole parental responsibility, there is a clear obligation on her to provide the father with information and, in the circumstances of this case, I see no problem with that proposed by the Independent Children’s Lawyer.
The mother seeks that the orders for contact be at least partially dependent upon [X]’s views. Whilst I recognise the growing significance that [X]’s views will take, I do not intend to make these orders expressly subject to that. It is important for [X] to spend time with his father. In time, it will be equally important for the father to listen to and attempt to accommodate [X]’s views. This is a matter for them, and not a matter for an order of the Court.
The mother opposes telephone communication each Wednesday between 6.30 and 7 pm. I am not entirely sure what is the basis of this. In circumstances where the father’s communication is otherwise limited to email, it is hard to see any basis for this.

I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of Altobelli FM

Associate:

Date: 30 May 2012

SCHEDULE A

ORDERS PROPOSED BY THE
INDEPENDENT CHILDREN’S LAWYER

That the mother have sole parental responsibility for the child [X] born [in] 1998 (“[X]”).

That the mother inform the father of the following:

2.1any change of address or contact details (including email address) for [X];

2.2any change of school attended by [X]; and

2.3 any hospital admission or serious medical condition of [X] with such information to be provided as soon as possible.

That, to the extent necessary, the mother authorise any school or medical practitioner to provide to the father:

3.1school reports, notices or other communications related to [X]; and

3.2medical reports.

That [X] live with his mother.

That neither party criticise the other or cast that other party in an unfavourable light in the presence or hearing of [X] or in a manner likely to come to his attention.

That the father enrol in, and complete, courses as follows:

6.1an anger management course such as ‘Enough is Enough’; and

6.2a course approved by Ms S for perpetrators of sexual offences.

That the mother facilitate the enrolment, and completion, by [X] of a course intended to provide strategies for protective behaviours such as the ‘Touchstone Program’ conducted by Relationships Australia.

That the father:

8.1 undertake counselling as recommended by Ms S to address issues of insight into the management of anger and into sexual offending; and
8.2continue such counselling as recommended by the treating counsellor.

That the mother facilitate such counselling for [X] as is recommended by Ms S to explain to [X]:

9.1why his time with his father is to be supervised; and

9.2why he is to attend a course as set out in order 7. above.

That [X] spend time with his father as follows:

10.1 until [date omitted] 2013, each alternate Sunday for two hours with such time to be supervised PROVIDED THAT such arrangements will continue until such time as the father and [X] have completed the courses and counselling set out in orders 6-9 above (“the courses”); and
10.2from the later of [date omitted] 2013 and the completion of the courses, each alternate Sunday for four hours.

That the mother facilitate telephone communication between [X] and his father:

11.1at any time requested by [X]; and

11.2each Wednesday between 6.30 pm and 7.00 pm

with such communication to be private.

That the reports of Ms S and Dr R released in these proceedings be released to any counsellor appointed under orders 8-9 above.

That the father be and is hereby restrained from:

13.1Spending time with [X] in the company of friends of [X]; and

13.2Communicating by text message with [X].