Johns & Jasapas
[2016] FamCA 471
•13 June 2016
FAMILY COURT OF AUSTRALIA
| JOHNS & JASAPAS | [2016] FamCA 471 |
| FAMILY LAW – CHILDREN - Parenting Orders – where mother alleges sexual abuse by father to children – where mother alleges the father is sexually grooming the children – where mother asserts father poses an unacceptable risk – where mother assets paternal grandmother also poses a risk – where mother asserts both physical risk and sexual risk to the children – where there is no history of family violence – where father does not pose unacceptable risk – where father’s hobby of photography does not mean the children are at risk – where father’s hobby of photography does not point to the father having poor sexual boundary – where no contact orders are not appropriate – where children are too young to express any views – where it is in the children’s best interests for there to be equal shared parental responsibility – where equal time is not in the best interests of the children – where children will primary live with the mother – where there is an order requiring the father to attend counselling. |
| Family Law Act 1975 (Cth) ss 4, 4AB, 60B, 60CA, 60CC, 61DA, 65DAA(1), 65DAC Evidence Act 1995 (Cth) s 140 |
| Banks & Banks [2015] FamCAFC 36 Bayer v Imhoff [2010] FamCA 532 B Mahendra “Psychiatric Risk Assessment in Family and Child Law” (2008) 38 Family Law 569 |
| APPLICANT: | Mr Johns |
| RESPONDENT: | Ms Jasapas |
| INDEPENDENT CHILDREN’S LAWYER: | Patrick Dooley |
| FILE NUMBER: | BRC | 5081 | of | 2014 |
| DATE DELIVERED: | 13 June 2016 |
| PLACE DELIVERED: | Townsville |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Tree J |
| HEARING DATE: | 3, 4 and 5 May 2016 |
REPRESENTATION
| THE APPLICANT: | In person |
| COUNSEL FOR THE RESPONDENT: | Mr Baston by direct brief |
| COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER : | Ms Frizelle |
| SOLICITORS FOR THE INDEPENDENT CHILDREN'S LAWYER: | Dooley Solicitors |
Orders
All previous parenting orders are discharged.
The mother and father have equal shared parental responsibility for B, born … 2010 and C, born … 2013 (“the children”) for decisions about major long term issues in relation to them and in the exercise of equal shared parental responsibility, will utilise the Our Children’s Website, and to enable that, each party is to do all things necessary to enable them to utilise that website no later than 7 days from the date of these orders.
The children live with the mother.
Each parent have sole parental responsibility to make decisions about the children’s day to day care, welfare and development whilst in that parent’s care.
The father spend time with the children at all times as agreed between the parents in writing, but failing agreement as follows:
(a)Until 1 February 2017;
(i) Week 1 – from 9:00am Saturday to 4:00pm Sunday and each alternate weekend thereafter;
(ii) Week 2 – C from 10:00am to 4:30pm Thursday and B from 3:30pm to 4:30pm and each alternate week thereafter;
(b) Commencing 1 February 2017;
(i) Week 1 – from after school/day care Friday until 4:00pm Sunday and each alternate week thereafter;
(ii) Week 2 – C from 10:00am to 4:30pm Thursday and B from 3:30pm to 4:30pm and each alternate week thereafter;
(c)Commencing 1 February 2018;
(i) Week 1 – from after school/day care Friday until 4:00pm Sunday and each alternate week thereafter;
(ii) Week 2 – from after school/child care Thursday to before school Friday morning each alternate week thereafter;
(iii) For a period of four days per school holiday period and for two sessions of four days per each Christmas school holiday period;
(d)Commencing 1 February 2019;
(i) Week 1 – from after school Thursday to before school Monday morning and each alternate week thereafter;
(ii) Week 2 – from after school Thursday until before school Friday morning and each alternate week thereafter;
(iii) For one half of each school holiday period;
(e)For the children’s birthdays, if they fall on a day when the father would otherwise be spending time with the children under these orders, then that time is suspended and the following apply:
(i) If not a school day, from 1:00pm to 8:00pm in even numbered years and from 9:00am to 1:00pm in odd numbered years;
(ii) If a school day from after school to 5:30pm in even numbered years and from 5:30 to 8:00pm in odd numbered years;
(f)For Father’s Day where Father’s Day does not fall on the father’s alternate weekend contact, from 9:00am to 8:00pm;
(g)On Christmas Day from 2:00pm until 2:00pm on Boxing Day and every odd numbered years thereafter;
(h)On Christmas Eve from 2:00pm until 2:00pm on Christmas day in even numbered years thereafter.
All changeovers during school terms on school days are to take place at the children’s school. For all changeovers which are on non-school days, or after school hours, such changeovers to take place at D Town Arts Centre.
The children shall telephone the father every Wednesday between 6:00pm and 7:00pm with the child to have a private place to take the telephone call.
Each party be restrained from denigrating the other parent, their partner or a member of their family or in the presence of or hearing of the children and must ensure that no other person does so and in the event of some other person doing so, then that parent must immediately remove the children from the vicinity of the person doing so.
Each party is restrained from discussing these proceedings with or in the presence of or hearing of the children.
The children are to attend Ms E for protective behaviours counselling for so long as she may recommend it continue.
The mother be restrained from audio recording the children or permitting others to do so in respect to sexual abuse allegations.
Within 28 days of these orders, both parties are to enrol in the first available Parenting Orders Program, and to undertake that program to completion.
Within 28 days for these orders, the father is to engage with a counsellor with a view to helping him improve his communication with the mother, and to maintain reasonable engagement with such counsellor until she or he is of the view that further counselling is no longer of benefit to the father. The father has liberty to publish these orders and reasons to his counsellor.
Otherwise than as provided in these orders, neither party is to publish any document, photographs relating to this matter without leave of the court.
In the event any dispute as to the interpretation, implementation or enforcement of this order including any claim by a party that it should be varied the parties shall first attend Family Dispute Resolution with a Family Dispute Resolution practitioner appointed by the parties and make a genuine attempt to resolve the dispute. Failing agreement as to that appointment, the party raising the dispute shall nominate three Family Dispute Resolution practitioners, one of who shall be chosen by the other party within 14 days.
The Independent Children's Lawyer is forthwith discharged with the thanks of the court upon the later of the expiration of the appeal period in respect of these orders, or the determination of any appeal.
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 Johns & Jasapas 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 BRISBANE |
FILE NUMBER: BRC5081/2014
| Mr Johns |
Applicant
And
| Ms Jasapas |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
On 13 March 2014, the relationship between Mr Johns (“the father”) and Ms Jasapas (“the mother”) terminated, a little more than 11 years after it commenced. From the mother’s perspective, the reason the relationship failed was because she discovered that for most, if not all, of the parties’ relationship, without her knowledge the father had been engaging in a hobby which saw him photograph attractive young female models, frequently wearing little clothing and in glamorous or provocative poses. She also discovered that the father had been regularly accessing internet pornography. On occasion, the father paid the models, and met any costs associated with his accessing internet pornography, from a secret bank account into which he had some of his earnings paid, in order to conceal his activities from the mother. In a sense, the father had been living a double life of which the mother knew nothing. Inevitably the mother felt betrayed, and that the life she thought she had been living with the father had been, if not wholly, then at least substantially, a false one.
Worse, after separation the mother, by a means I will discuss later in these reasons, discovered that the father had taken some photographs of her own genitals, she says without her consent, when she was asleep and heavily intoxicated. Further, she says that the parties’ children, B, born in 2010 and hence presently five years of age, and C, born in 2013 and hence presently two years of age (“the children”) have post-separation either made disclosures of sexual or physical abuse of them by the father, or have acted in sexualised ways. Moreover, she believes that other members of the father’s family, including his own mother, have abused one or both of the children and are prepared to condone the father sexually abuse the children whilst they are in his care. Her evidence, and that of some of her family members, was that she believes the father to have sexually abused B, and to be grooming him for further sexual abuse. She believes that the paternal grandmother is also grooming one or both of the children for sexual abuse. She is convinced that the father has a sexual interest in underage persons, and is addicted to pornography.
These views informed the orders which she sought in relation to the children spending time with the father, namely that the children should live with her, and spend some hours of supervised time with the father each alternate Saturday at a Contact Centre.
Whilst conceding his clandestine hobby of photography, and his regular access to online pornography, the father denied that he had ever acted in any inappropriate way towards either children, whether sexually or otherwise abusively, and denied that he posed any such risk. On that basis he justified the orders for which he contended, namely that there be equal shared parental responsibility, and that the children spend regular unsupervised time with him, but otherwise live with the mother.
The Independent Children's Lawyer supported the father’s position, but proposed an even more generous regime of time than that sought by the father. She justified those orders on the basis that the children would benefit from as much time as possible being spent with the father. Ultimately the father did not oppose the orders contended for by the Independent Children's Lawyer.
BACKGROUND FACTS
The father
The father was born in 1975, and hence is presently 41 years of age. He grew up in the D Town region, initially with both of his parents, but after they separated when he was around 12 years of age, he lived with his mother for a further three years, and then moved to live with his father until the completion of year 12.
He then completed a degree at a university, before joining the public service in 1998. However he did not enjoy that period of time in service, and resigned in 2000. He then at some later stage commenced a further degree, seemingly supporting himself through those studies by working in the security industry. In 2002, the father commenced his hobby of photography. It was at that stage of his life, in May 2003, that he first met the mother, when he was aged 27 and she 19.
The mother
The mother was born in Hobart in 1983 and hence is presently 33 years of age. She moved with her family to D Town when she was 12 years of age, and completed year 12 in that region. She then undertook some training and obtained employment in that area, and it was at that point in her life when she met the father in 2003.
The relationship
Ultimately the father obtained his second qualification and for about two years was employed as in D Town. It transpired he did not enjoy that employment and at a time which is unclear, determined to leave. For reasons which are equally unclear, he determined to engineer his departure from that employment by falsifying a medical certificate and faxing it to the Department of Education from a fax machine in the maternal grandparents’ home. There is some controversy about whether or not the mother and maternal grandmother were aware of the deception, but nothing turns on that.
In 2004 the mother obtained employment with Company I, and remained employed with that company at the time of trial.
In 2008 the father successfully re-applied to join the public service.
In December 2008 at the age of 26 the mother purchased a home in her sole name. It was into this property that the father moved in early 2009, at which point the parties agree that their de facto relationship commenced.
It seems to be agreed that the mother viewed the father as being irresponsible with finances. In her affidavit filed 5 April 2016 (“the mother’s trial affidavit”) at [27] she said that when he moved into her property, he did not own any property, or even a car, and had no savings in the bank. She said that she could not understand how he could be in such a position when he was employed as a public servant and had good regular income. Of course it is now known that part of the reason for this was that the father had established a secret bank account into which he had his employer divert some of his wages.
In early 2010 the mother was told that she was expecting fraternal twins. However the 18 weeks scan disclosed that there were complications with the female twin. Sadly in September 2010, the pregnancy of the female twin was terminated. The mother’s trial affidavit asserts that the father showed no emotion or otherwise empathised with the mother’s grief at that time.
Moreover, the mother’s trial affidavit makes it plain that, although at the time the father asserted that he could not care for the mother due to the demands of his employment, she has subsequently determined that in fact the father could have done so, but was organising his rosters so that he spent his time off pursuing his photography hobby.
From about September 2010 the parties lived for 18 month’s rent free in the maternal grandparents’ home.
In 2010 the twins were born by emergency caesarean, but the mother remained in hospital recovering for ten days, as she developed an infection. Her trial affidavit says that she was upset and surprised by the father’s alleged lack of support or interest in the new born child, and she annexed a contemporaneous email between the father and his shift supervisor in which he was seeking nightshift work so that he did not have to attend to B who was then suffering colic.
The mother had two years maternity leave from her employer after B’s birth. Her trial affidavit detailed that during this time, the father provided her with typed rosters he prepared showing his work commitments, but it apparently transpires that they were not accurate, and were deliberately cast in a misleading way to enable him to engineer time to undertake his photography hobby.
In 2012 the mother returned to part-time employment. However she shortly thereafter suffered a dislocated right knee which required surgery. She received worker’s compensation payments, but was in a leg brace and on crutches for months. Notwithstanding this disability, she says that the father did not provide much assistance around the home. She suspects that this was because any time off that he had from his work was devoted to his photography.
C was born in 2013. The mother again took two years of maternity leave. Her evidence is that the father was not particularly involved with C either, and she again contends that the father was prioritising his hobby over parenthood.
On 12 March 2014 the mother inadvertently found out that the father had bank accounts of which she was utterly unaware. Her investigations on that day disclosed that the father put $220.00 of his pay per fortnight into one of those accounts. Amounts were then withdrawn in cash. She challenged the father in relation to this, and he initially proffered a series of inconsistent explanations, all of which proved to be false. Unhappy with the changing and inconsistent explanations, on the following day the mother checked the home computer. She discovered that the father had a Facebook account under a false name and that he had an email address of which she was unaware. She continued her investigations, and discovered the father’s photography hobby. She was able to access some accounts on various sites that the father had associated with this hobby, and her affidavit is replete with material which shows that in the course of that hobby, the father regularly misled models as to the reasons for the shoot, such that he was shooting swimwear for an aunt’s label or clothing store. There were numerous other lies given to the models, which she says he has continued to make since separation.
Post-separation
At that point the parties determined to cease their relationship. The mother says that in the course of those communications the father admitted to having an addiction to pornography and agreed to seek help. For his part the father says that any concessions that he has made to the mother in those circumstances were intended to save the relationship, rather than reflect his actual intentions.
After separation, the mother went through some of the father’s possessions which were left in the house. Amongst them she discovered a memory card for an old camera. She says that she did not know what was on the card as she did not have equipment which could read it.
The mother was extremely troubled that the father’s conduct in operating his photography hobby was somehow illegal, or otherwise unethical for him to be undertaking, given his role as a public servant. Whether directly or via police, she ultimately made a complaint about the father to the public service. Amongst the material which she gave them in support of that complaint was the memory card. Not long after it was provided the mother was advised that there were photographs of her on the card, and when the mother viewed them she was horrified to see that they were photographs of her genitals.
Ultimately nothing came of the mother’s complaint nor has the father otherwise been disciplined by the public service for his activities. Particularly his hobby appears to be undertaken with the consent and full knowledge of the models, does not involve full-frontal nudity (although the father has on one or two occasions undertaken what he described as “implied nude” photography) and do not involve the photographing of persons under the age of 18 years.
Immediately after separation the father was permitted by the mother to spend time with the children, but only in her presence. It is not altogether clear why the mother had such a stance. It is quite conceivable that, given her perfectly understandable distress and anger at the deception which the father had practiced on her over many years, there was an aspect of revenge to it. She might also have been concerned that she did not really know the person that she had been living with, and in a relationship with, and began to entertain some concerns about his stability generally, or at least his capacity to regulate his sexual behaviours more specifically.
On 11 June 2014 the father commenced these proceedings. In those he sought orders for unsupervised time, which were opposed by the mother in her Response filed 7 July. However on 5 August 2014, consent interim orders were made which provided for the father to spend unsupervised day time with the children three days per week. On 20 November 2014 the first Family Report recommended that the father’s time with the children progress to overnight time in September 2015, which reports recommendations were reflected in orders made by consent on 4 December 2014. There was a further mention of the matter for 28 July 2015.
However prior to that mention date, the mother says that the children began making alleged disclosures of physical abuse whilst in the father’s care, and sexual abuse of B by the father. I will detail those allegations in due course. In consequence, on 1 July 2015 the mother sought the suspension of the father’s time, and on 14 July, Judge Demack ordered that the father’s time with the children be supervised at a Contact Centre.
The mother’s allegations were investigated by the Department of Communities, Child Safety and Disability services (“DoCS”), and the child B was interviewed by the police. No disclosures were made, and after the matter had been transferred to the Family Court, on 21 September 2015, a Magellan report prepared by DoCS concluded that there was no information indicating sexual or other abuse of B by the father, or other indicators of sexual abuse.
On 1 October 2015, Principal Registrar Fillipello ordered that the paternal grandparents have time with the children for three hours per fortnight, together with time of Christmas Day. Those orders were discharged on 20 January 2016 consequent upon the father commencing to spend unsupervised time with the children pursuant to orders also made on that day. That was the position as at the time of trial.
THE ISSUES
With the assistance of the parties during the course of the trial I identified that the following are the issues likely to substantially impact upon the determination of these proceedings.
1.What is the nature of the relationship between the children and:
(a)The father;
(b)The mother.
2.Would the children benefit from a meaningful relationship with the father, and if so, how might it best be facilitated.
3.What risk of harm to the children is posed by:
(a)The father;
(b)The paternal grandfather;
(c)The paternal grandmother.
4.Would either parent facilitate a meaningful relationship between the children and the other parent.
5.What would be the likely effect on the children of spending only limited supervised time with the father.
6.Is the parties’ communication capable of supporting equal shared parental responsibility.
Once I have discussed the relevant statutory provisions and legal principles, I shall address those issues in advance of a traverse of any unaddressed relevant s 60CC factors, and then consider the appropriate parenting orders in this case.
RELEVANT STATUTORY PROVISIONS AND LEGAL PRINCIPLES
The statutory regime
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).
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 s 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.
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.
In this context it is convenient to also advert to s 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.
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. Consideration does not mean discussion: Banks & Banks [2015] FamCAFC 36 at [49].[1]
[1] Although that case was in relation to interim orders, there is no reason to think it does not equally apply to final orders.
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.
Abuse, neglect and family violence
“Abuse” is defined in s 4 of the Family Law Act in the following terms:
Abuse, in relation to a child, means:
(a) an assault, including a sexual assault, of the child; or
(b) a person (the first person) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is unequal power in the relationship between the child and the first person; or
(c) causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or
(d) serious neglect of the child.
Neither the term “neglect” nor indeed “serious neglect” appears to be defined in the Act; absent any indication in the Act to the contrary they should therefore have their usual dictionary meanings. I can discern no contrary indication in the Act. The relevant definition of the word “neglect” in the Macquarie Dictionary is “to be remiss in care for or treatment of.”
“Family violence” is defined in s 4AB(1) of the Family Law Act in the following terms:
For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the persons family .. or causes the family member to be fearful.
Section 4AB(3) provides that for the purposes of the Act, a child is exposed to family violence if the child sees or hears family violence, or otherwise experiences the effects of family violence. Section 4AB(2) and (4) respectively give examples of behaviour that may constitute family violence, and examples of situations that may constitute a child being exposed to family violence.
The standard of satisfaction required
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.
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.
Therefore consistent with s 140(2), in taking into account the gravity of the parties’ allegations, 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.”[2]
[2] 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
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.
In M v M (1988) 166 CLR 69, the High Court had occasion to consider the approach in Family Court proceedings albeit in the context of allegations of sexual abuse of a child. At [25] the Court said as follows:
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.
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:[3]
(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?
[3] Taken from B Mahendra “Psychiatric Risk Assessment in Family and Child Law” (2008) 38 Family Law 569.
I gratefully adopt that passage as helpful in cases such as these in analysing the asserted risk.
“No contact” orders
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. They 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.
Re Andrew also discussed a further line of authorities, which upheld “no contact” orders being grounded, not upon a proved unacceptable risk of harm posed to the child by the parent, but rather where the other parent entertained a genuine, but not necessarily reasonable, belief that such a risk of harm existed. The basis for such orders was not to protect the parent from the consequences of their belief, but rather to protect the child from those consequences, where doing so was in the child’s bests interests. Thus in Russell v Close (Unreported, 25 June 1993) the Full Court held that where such parental anxiety was likely to impact adversely on that parent’s care-giving ability, the Court needed to take that into account. A re-statement of that principle is in Bayer & Imhoff [2010] FamCA 532 at [177].
It is incumbent upon the court to clearly explain its reasons for any conclusion that safeguarding conditions cannot sufficiently ameliorate the risk posed by the parent: see Blinko & Blinko [2015] FamCAFC 146 at [30].
NATURE OF RELATIONSHIP BETWEEN CHILDREN AND EACH PARENT
Ultimately this was a matter which did not excite much controversy. The unchallenged evidence of Ms F, the Family Report writer, was that both children were happy in the company of the mother and father, and were securely attached to both. She opined that the children were primarily attached with the mother, because they had spent most of their time of their lives to date with her.
WOULD CHILDREN BENEFIT FROM MEANINGFUL RELATIONSHIP WITH FATHER
Again, subject to the question of any risk which the father poses to the children, this was not a matter which was in contest. Ms F’s unchallenged evidence was that to her observation, both children like spending time with the father, and interact well with him. Her evidence was that he relates well to the children and can care appropriately for them. She said that as children grow up, it is important for them to have a knowledge of, and a relationship with, their father, and that would be best effected by them spending regular face-to-face time with him. She opined that whilst presently C’s age precludes there being any increase in time, it should commence to further increase when she turns three, but emphasised that it was frequency, rather than duration, of time which was important in maintaining the bond between her and the father. She recommended that when C turns three, the time that the children spend with the father should increase to two consecutive nights, but that otherwise the children remain in the care of the mother. She said that any further increases should be managed in a gentle manner, and it could be counterproductive to dramatically increase the time which the father spends with the children. I will further review this evidence in the context of the competing proposals for time.
RISK OF HARM TO CHILDREN POSED BY FATHER AND HIS FAMILY
Overview
This matter progressed in a most unusual way during the course of the trial. At its commencement, the mother’s trial affidavit and her outline of case, contained many and various allegations, and a vast amount of material from which one would ordinarily have anticipated a long cross-examination of the father and his family by reference to the alleged risk which they posed, and strident submissions justifying the proposed orders. But in fact none of the father’s witnesses, or even the father himself, was cross-examined in such a manner at all, and no submissions were advanced along those lines either. As I remarked to the mother’s counsel, the conduct of the trial in that way necessarily makes it far harder for the court to be persuaded to the requisite standard of the alleged risk posed by the father and his family members, because the court did not have an opportunity to see their direct reaction to the allegations. That said, I acknowledge that the Independent Children's Lawyer did cross-examine the paternal grandmother by reference to such allegations, but it was not with any degree of vigour.
Nonetheless it is incumbent upon the court to consider the mother’s allegations, and evaluate the level of risk, if any, which the father and family pose to the children.
The risk may be fairly said to be on two broad fronts. The first is one of physical harm arising, it is said, by virtue of the children’s complaint from time to time that the father and paternal grandmother have either hit or pinched them, and the fact that from time to time B has presented with bruises. The second area relates to sexual abuse. The mother’s trial affidavit in this regard asserted that risk arose from a combination of matters. The first was the father’s hobby of photography, coupled with his access of online pornography. The second were the alleged disclosures by B, from time to time, of the father, amongst other things, touching him on the penis. However to these two leading points, there were well in excess of 20 individual matters relied upon by the mother which ultimately, at least in her affidavit and case outline, were said to demonstrate the level of risk attaching to the father and his family was an unacceptable one.
As I have already indicated, the father vehemently denies any misconduct towards the children, and says that his hobby, whilst concealed from the mother, does not involve any breach of the law or is otherwise improper, and that it is part of a well recognised area of photography.
The Independent Children's Lawyer, at least by her counsel’s cross-examination, not only rejected the notion that the father and his family presented as an unacceptable risk of harm to the children in any respect, but went so far as to suggest that the mother’s evidence in relation to the disclosures was fabricated, and deliberately done so at tactically advantageous times so as to impair the prospect of the paternal grandparents spending unsupervised time with the children, or the father spending unsupervised time with them.
The father
The children’s alleged disclosures
In the mother’s trial affidavit from paragraphs 119 to 157, she detailed a number of alleged disclosures by the children. She was cross-examined extensively by the counsel for the Independent Children's Lawyer about these disclosures, and particularly the fact that some of them were entirely, or the detail relating to some of them was, missing from earlier affidavits which she had filed. It is indisputable that indeed those earlier affidavits did not contain either reference at all to some of the alleged incidents, or contain important detail of them. The mother’s only explanation for the fact that they appeared in a far more fulsome state in her trial affidavit, rather than the earlier versions, was that it was a decision made by her solicitors. She claimed that many of the entries would be in a diary which she maintained in which she apparently contemporaneously wrote down relevant events, but although that diary was apparently produced by the mother, it was not tendered into evidence, whether by the Independent Children's Lawyer or the mother’s counsel, save for entries for three dates in early 2015.[4]
[4]Exhibit 10.
A further and equally significant attack was made upon the mother in relation to the alleged disclosures by reference to some contemporaneous recordings which the mother made of conversations between her and the children. Those were played to the court, or at least parts of them were. In them, it is plain that the mother was questioning B in a leading way, and from time to time during the course of conversations wholly unrelated to the alleged disclosures, reintroduced them as a topic of conversation again. All of that inevitably means that the weight of the content of those disclosures is considerably diminished.
Further, of real significance is the fact that when questioned by police, B did not make any disclosures of abuse.
Nonetheless the alleged disclosures by B, apparently selected by the mother in her affidavit, are as follows:
·That B keeps on referring to surprises which the father has for him “in the box” when he visits;[5]
[5]Paragraph 121.
·That the father told B that he had to hit the mother;[6]
[6]Paragraph 122.
·That B said to the mother that the father had told him “there is a monster coming to our place to hurt you;”[7]
[7]Paragraph 124.
·That B made reference to drowning, and said that the father had told him that;[8]
[8]Paragraph 125.
·B has told the mother that he and his father have secrets;[9]
[9]Paragraph 126.
·B told the mother that “daddy squished my arm really hard” and there were three distinct bruises on his arm which the mother thought were finger marks, photographs of which were in evidence;[10]
[10]Paragraph 127.
·B told the mother upon returning from a visit with the father that “daddy said I have to be naughty;”[11]
·That B returned from the father’s care with a bruise to his forehead, and acted out being hit on the forehead with the palm of his hand, in the course of saying that his father had struck him, and that B had tried protect C from the father smacking her and he pushed B out of the way who fell over;[12]
·During a bath time episode in which both children were in the bath, B said “look mummy [C] is trying to eat my willy” and when told that this was filthy talk, and asked where he had heard it, said “daddy said it;”[13]
·That B told the mother that “daddy hurts me all the time;”[14]
·That B when getting changed said “daddy hurt my willy” and went on to say “he squished it because he wanted to.” He later said that it had occurred when he had no pants on “because daddy wanted to look at my willy;”[15]
·That on the same evening as the preceding alleged disclosure B told the mother “daddy hurts me all the time” and that he hits him on the head and tells him about monsters;[16]
·That B told the mother that the father “hits me on the arms and legs;”[17]
·That during a bath episode B manipulated a cup over his penis and said “look mummy it is sucking my willy;”[18]
·That B disclosed that the father touched his penis and demonstrated how it occurred by putting his hands down his pants and grabbing his genitals;[19]
·That on occasion when he was naked, B turned and spread his buttocks at the mother and told the mother that he did that at his father’s house.[20]
[11]Paragraph 128.
[12]Paragraph 132.
[13]Paragraph 134.
[14]Paragraph 137.
[15]Paragraph 138.
[16]Paragraph 139.
[17]Paragraph 140.
[18]Paragraph 141.
[19]Paragraph 147.
[20]Paragraph 153.
I should note that some of these alleged disclosures were also said to have been heard or observed by the maternal grandmother, who also gave evidence before me.
The father denies ever having inappropriately touched B’s penis, but accepts that he would have touched it when dressing him, and may have touched it – albeit through clothing – during the course of playing and wrestling with him.
Whilst I accept that from time to time B has mentioned matters as discussed above, I am inclined to give little weight to them. I do so because:
·They do not appear to have been able to be elicited from him outside of conversations with his mother or other maternal family members;
·B otherwise appears to have an active and playful imagination;
·The “disclosures” have, on occasion, been made in response to leading questions from the mother, who frequently reintroduces the alleged disclosure later in the conversation, at a point when it has moved well away from it;
·There does not appear to be anything overtly sexual in the way in which B discloses that his father has touched his penis;
·The mother and her family more broadly appear to have a somewhat prudish approach to sexual matters, and it might be that they are more inclined to react in a somewhat startled manner to such disclosures;
·Beyond doubt, the mother does not trust the father and has a particularly poor view of him, and hence is unlikely to treat any alleged disclosures with any degree of scepticism or look for innocent explanations;
·There appears to be something of a team mentality in the mother’s home where the adverse view of the father is shared and promoted.
That said it would have to be conceded that the child’s disclosures could be consistent with sexual abuse or physical abuse, but of themselves do not go very far down the path towards that conclusion.
B’s masturbation
The mother and a number of her family members gave evidence that B appears to self-stimulate. The father says it does not happen at his house. Perhaps a little unusually, in the mother’s household, when that behaviour demonstrates itself, it is treated very negatively, and he is told that it is “dirty” and that he must stop it and not do it again. This appears to have led to the behaviour being more furtive nowadays than when it commenced.
The mother and her family appear to think that the child has learned this behaviour in some manner in the father’s home. Of course the father was not cross-examined by reference to any suggestion that he may have either masturbated the child himself, or exposed the child to him masturbating, or have seen pornography involving male masturbation. Moreover, no expert evidence was led as to any correlation between a child of B’s age self-stimulating, and a child having been sexually abused or exposed to such behaviour.
Of itself, on the material before me, the child’s behaviour in this respect is neutral.
Father’s photographic hobby
The mother devoted much of her affidavit to material showing that the father was an enthusiastic photographer of scantily clad young women, in glamourous or provocative poses. She pointed to the fact that many of the women were young, perhaps in their late teens or early 20’s. She also pointed to the fact that at one stage the father was speaking to a model who was 15, although she did not go so far as to say that the father in fact agreed to photograph her. Further, she pointed to the fact that the father frequently misrepresented his reasons for wishing to photograph the girls, on occasion paid them in cash, and on one occasion expressed dismay that a parent had attended a photoshoot with one of the girls, without forewarning. She further pointed to the fact that the father had kept the hobby secret during the course of the relationship, and seemed to infer that therefore there was something wrong with it.
I frankly have to say that I cannot understand how the father’s accepted hobby in this respect informs him as being a risk of sexual abuse to the children. Particularly it does not point to the father having poor sexual boundary regulation, or that he is prone to do anything other with the models than photograph them. I accept that it is likely that the father derives a degree of sexual stimulation from his hobby, and that on occasions he does, either by location, pose or clothing choices, introduce some sexual energy into the photography. Further, many of the models are indeed very beautiful young women. However even if it be that the father obtains some sexual stimulation from his hobby, it is a very long bow in the extreme to say that he thereby poses a risk of sexual harm to his children.
Another issue relied upon by the mother was the prospect of the children coming into contact with the photographs that the father takes. Many of the photographs were annexed to the mother’s affidavit, however most of them are no more provocative than those in many magazines that are freely available for purchase at newsagents, or otherwise likely to be encountered by young persons in the everyday world. I am not satisfied that there is any real risk of the children obtaining access to more provocative or revealing material in consequence of the father’s photography hobby, than they would in the general world more broadly.
As to the father having kept the hobby secret, he explained it, to my view convincingly, on the basis that he knew the mother would not approve of it, but was not prepared to not pursue it on that basis alone. I have already observed that the mother does appear to be herself somewhat sexually prudish, and to have come from a prudish family. I have little doubt that she is thoroughly revolted by the fact that the father was doing all of this behind her back, and regards it as dirty and a perversion. However I am satisfied that the father is being truthful in his explanation for the reason why he kept his hobby secret from the mother.
True it is that the father does, on occasion, seek to make his photography of the models seem more legitimate than it might otherwise be by, for instance, falsely pretending that they are photoshoots for commercial purposes, but even if it be that some of the models have been seriously misled, again it does not speak to a risk of sexual harm to his children.
SIM card photos of mother
The mother’s counsel tendered into evidence a number of the photographs which were apparently located on the SIM card which the mother provided them. Some of them are particularly graphic photographs of the mother’s genitals. They are consistent with both parties’ explanations as to how the photographs likely came about. For his part the father says that whilst he cannot really recall taking them, he believes they were likely taken on occasions when the parties were severely intoxicated, and were consensual. That at least appears plausible, given the time stamp on some of the photographs, which is late at night, and the fact that there appears to be a gap between two blocks of photographs which initially start with the mother lying supine on a mattress, but after an hour sees her lying on that mattress but under a sheet. By pointing to that fact, I note that there was a lapse of about an hour, in which plainly the bed had been arranged in a position more consistent with sleep than it initially started, and one could infer that there may have been sexual relations between the parties during that intervening hour.
The photos are also consistent with the mother’s version of events, which was that she was unconscious, or at least asleep, at the time, and did not consent to the photographs being taken of her. Some of the poses which involve the father’s hands might be of a kind to arouse someone who was asleep, but I accept that it is likely that both of the parties were highly intoxicated at the time.
If the father was indeed taking these photographs without the mother’s consent, then on occasions when he was plainly touching her, so as to improve the clarity of detail in the photograph, it was probably an indecent assault. That is a serious claim. I have some hesitation in accepting the mother’s evidence that she would never engage consensually in such things when she was drunk, particularly given that the photographs appear to have been taken in 2007, which was prior to the parties’ cohabitation.
Ultimately it is unnecessary to determine this matter either way. I say that because, even taking the mother’s case at the highest – namely that the father indecently assaulted her by touching her in the area of her genitals so as to effect clearer photographs of them – it does not inform me as to the risk that the father might sexually assault his own children. At the time the mother was 24 years of age, and there is nothing in the photographs to suggest that they indicate that the father either has an interest in young children, or if he was undertaking such photographs without the mother’s consent, that he is likely to perpetrate that on his own children as well.
The cot photograph
Annexed to the mother’s affidavit was a photograph taken by the father at about 2:00am in the morning, when he had returned from working a night shift, of the mother and both children asleep. The mother seemed to think there was something sinister in this photograph. I do not agree with her. It appears perfectly innocent.
Improper publication of work materials
It appears as though during the course of the relationship the father would, from time to time, use his own camera to take photographs of things that occurred at his work, and send them to the mother with a comment. There were some photographs of juveniles which the father explained were likely taken for work purposes, but which nonetheless he appears to have sent to the mother.
The photographs of the teenage children are not suggestive or provocative, and there is nothing sexual about the poses. It is a very long bow indeed to draw to say that the fact that the father was prepared to take these photographs and send them to the mother, somehow informs the level of risk which he poses to the children. I give them all no weight.
Father’s video of B
The mother says that in part of the materials that she went through after the father left the home, there was a very grainy photograph, which on one view, is of the father carrying B naked around whilst videoing things. The mother thinks she can identify B’s buttocks.
The video was not in evidence, but some stills were annexed to the mother’s affidavit. There is absolutely nothing in them which suggests, to my mind, that they were sexually motivated, or that it was somehow abusive. It does not inform me at all as to the risk the father poses to the children relating to sexual abuse.
Father’s use of pornography
The mother says that after separation, when she was going through parties’ computer, she identified that the father had accessed (perhaps by membership) pornography sites that advertised themselves as having “teen” or “college” porn. The father concedes that he accesses pornography about three times per week.
I am unable to conclude that, even if the father does access online pornography of teenage (albeit legal) girls, that he somehow thereby poses a risk of harm to his children of a sexual kind. Whilst I do not intend to address the morality of such pornography, the reality is that it is perfectly legal.
Children’s behaviour after time with the father
It is said that after spending time with the father, B engages in bedwetting, sleepwalking, and has taken to going to the toilet naked. As to the latter, he apparently asserts that this is how he toilets at the father’s home, although the father denies it, as do the paternal grandparents. There was no evidence led as to any link between bedwetting, sleepwalking or toileting naked, and the sexual abuse of a child. Further it was said that B had for some period of time been stuttering. The evidence did not speak with one voice on this, in that whilst the mother said that B no longer stuttered, the maternal uncle said that he did. Even if it be that he has stuttered from time to time – which the father does not accept – again it does not speak to having been sexually abused, at least on the evidence before me.
It is also said that C has demonstrated fear at having clothing or other objects placed over her head, and B has explained this on the basis that when at the father’s home, she is made to walk around so that she hits things with clothing over her head.
I put little weight on this matter.
Children’s bruises
B has from time to time presented with bruising, some period of time after his return from his father. On occasions he has explained them on the basis that the father has hit him or hurt him.
There is nothing in the bruising which would suggest to me that they are anything other than ordinary childhood mishaps. As to that, as I shall shortly discuss, the father does engage in some degree of wrestling with B, and I am satisfied that B perhaps might, on occasion, perceive that as hurting him.
Father’s wrestling with B
The mother accepts that the father used to wrestle with B even prior to separation. She also appears to accept that even then it was referred to as “dirty boys” by the father and B. The father says that was because B would break wind on occasions during the wrestling, and he would call him a dirty boy. I am quite satisfied with that explanation as to how the term came to be coined, and that the wrestling is ordinary father/son horse play.
The mother appeared to suggest that the wrestling was some form of sexual grooming of B, in that it would desensitise him to what would otherwise be sexual abuse. I am afraid I cannot share her suspicions.
Father’s difficult childhood
It appears as though the father had some difficulty in his childhood. I assume that the reference to this in the mother’s trial affidavit was somehow or other meant to inform me as to the level of risk of harm which the father poses to his own children. It does not.
Lack of emotional support during relationship
The mother appeared to argue in her trial affidavit that the father was a somewhat isolated character during the relationship, and was unlikely to show emotional support to either her or the children at times of need, and was somewhat self-obsessed. More, she points to the fact that he has only limited social skills and a restricted group of friends, and appeared to be obsessed during the early stages of the relationship with her parents’ view of him.
Ironically, even if this be true, the mother also made criticism that the father now is too interested in the children, for instance regularly buying them toys and the like. She, and some of her family members, now see this as some sinister grooming of the children, so that the father can sexually abuse them.
I am afraid that I cannot see any link between the allegations of a lack of emotional support of either the mother or the children during the relationship, with a risk of abuse; likewise for the mother’s allegations that the father did not properly shoulder the burden of child raising during the course of the relationship. Plainly he now wishes to be engaged in the children’s lives on a regular basis. That of itself could not possibly persuade me that the father thereby has some malicious intent.
World of Warcraft “offences”
The mother’s affidavit even went so far as to refer to the fact that she had identified that the father had been in breach of some rule of an online game called World of Warcraft. Apparently the administrator of that game described what the father did as offences. The father explained that the offences were likely that he was using – against policy of the game – the name of a celebrity, or well-known person. I accept that evidence. However the significance of the mother’s allegation is not to paint the father in a bad light, but rather to underscore the level of desperation which attended her attempts to paint the father in a bad light.
The meme
The mother also relied upon the fact that the father, in communications on Facebook and other media, uses a meme with a somewhat violent subtext to it. The father explained that it came from a movie, and was intended to be humorous. I accept that evidence. Again however the fact that the mother has descended to such trifling matters to try and paint the father in a bad light, is informative in itself.
The father’s dishonesty generally
It appears as though the mother, at least in her mind, thinks that the fact the father is an habitual and compulsive liar, somehow or other informs the level of risk that he poses to the children. I accept that the father has on occasions been dishonest, and perhaps has a generally dishonest disposition. Even if it be that the father is an habitual liar, it does not inform the level of physical or sexual risk which he poses to the children.
The expert evidence re risk
The father underwent a sexual risk assessment by a psychologist, Mr G. The father appears, at least from that report, to have honestly answered the questions posed of him in relation to his sexual predilections and practices. Importantly Mr G noted at paragraph 145 “.. The writer detected no past or current use of child-related images or sexual fantasies involving children, as part of [the father’s] sexual arousal patterns and/or masturbatory practices; which factors are highly correlated to an individual’s risk of acting-out sexually toward children.” Mr G continued that the father was assessed as “low-risk” of sexual harm, which meant that he was unlikely to offend even under conditions of ready access to identified targets of concern without supervision and extending over lengthy periods of time. He concluded that there was no reason to exclude unsupervised contact arrangements for his children.
Although Mr G was briefly cross-examined by counsel for the mother, it was not to challenge those opinions. Rather it was to suggest benefits which might ensue in the event that the father were willing to undertake some counselling, albeit not directed towards reducing any risk of harm to the children which he poses.
I accept Mr G’s opinion.
In a similar way I note the two Magellan reports, which in the context of the alleged disclosures by B of the father touching his penis observed:
There are many non-sexual reasons that a parent could touch their children’s genitals, such as washing, applying cream, checking for injury and so on. There is no current information that indicates this touch was sexual or abusive in any way, and there is no child protection history that suggests any indicators of sexual abuse.
The report went on in relation to the allegation that the father had hit the child B, and said:
The information received in relation to the father hitting the child [B] is very limited and few contextual details were provided. It is not known what is meant by hitting and there is no information known in relation to severity or frequency. No information received indicates that either child has received, or is likely to receive, injuries or other physical harm that is detrimental to their wellbeing.
It appears as though (although it was not in evidence) that during his iCare interview B did identify that the father hit him. However as the Magellan report itself identifies, apparently there was no context given to it, and I note that the father does concededly regularly play with B by wrestling with him.
Evaluation
Even if there were no sexual risk assessment which supported the father, whether individually or collectively, the material relied upon by the mother as founding her suggestion that the father is a risk of sexual or physical harm to the children, falls a long way short of satisfying me that the risk is anything other than remote. However there is the sexual risk assessment which identifies the father as low risk, and identifies no impediment to him spending long periods of unsupervised time with the children. That report was not challenged.
Even accepting that the consequences of sexual abuse can be severe and long lived, and affect many domains of the victim, even into adult life, the risk of the father so offending is so low as to make the assessment of the risk of harm negligible.
As to physical harm, whilst it may be that the consequences of physical abuse are not as extensive and severe as sexual abuse, nonetheless it is incontestable that the consequences on a child can be considerable. However again the prospect of the father so abusing either of the two children, at least on the evidence before me, is so low as to again to make the risk of harm to the children negligible.
I am not persuaded that the father presents an unacceptable risk of harm to these children, such that his time ought either be suspended or supervised.
The paternal grandmother
Somewhat surprisingly, the mother and other members of her family asserted that the paternal grandmother herself presented a risk of sexual harm to one or both of the children, and that she was grooming them. That was said because B indicated that on an occasion when his father had squeezed his penis, the paternal grandmother was also present. The mother unquestioningly appears to accept the veracity of what B tells her in this regard, and discounts altogether that there is any confusion, fantasy or even imagination involved.
The mother also appeared to rely on some other slender accusations in relation to the paternal grandmother, for instance that B told her on occasion that “grandma said you’re stinky,”[21] and on another occasion B said that his grandmother (and father) hit him on the hand.[22]
[21]Mother’s trial affidavit paragraph 143.
[22]Paragraph 145.
The paternal grandmother was cross-examined by counsel for the Independent Children's Lawyer in relation to these matters. She emphatically rejected them. I unhesitatingly accept her evidence. She presented as a sensible, caring, intelligent and loving grandmother. There is absolutely no reason to believe that she would tolerate for even one second any sexual abuse of either of her grandchildren, and I wholly reject the assertion that she has done so. However the absurd allegation that she herself presents a risk of harm to the children, and is grooming them for sexual assault, is simply ridiculous. It may safely be described as complete rubbish. The fact that the mother is prepared to swear evidence to that effect, speaks volumes as to her lack of objectivity in relation to these sorts of matters, and the unreliability of her own perceptions in those regards.
The paternal grandfather
In the mother’s trial affidavit there was some criticism made in relation to the paternal grandfather at paragraph 129, where she said that B told her that he “squeezes my hand and it hurts.” I do not think that there is any other allegation made against him. The paternal grandfather (noting that in fact he is the paternal step-grandfather) gave evidence before me, and again was an impressive witness. True it is, that he was perhaps a little more argumentative with counsel for the mother than was desirable, but I should note that the cross-examination of him did not extend to any allegation of misconduct by him. I wholly reject, to the extent that it was even advanced, any criticism of him as posing any form of risk of harm to these children.
Conclusion
I am not satisfied that the father, paternal grandmother or paternal grandfather, present a risk of harm to these children of any magnitude, and certainly not of a magnitude that disentitles them to spend regular and extensive unsupervised time with them.
WOULD PARENTS FACILITATE MEANINGFUL RELATIONSHIP WITH OTHER
Given the view which the mother, and many members of her family, appear to hold of the father, one could readily suspect that the mother would be unlikely to facilitate a meaningful relationship between the children and the father. However interestingly this was not the opinion of Ms F, based upon her observation of the children with their parents. Her evidence was that even though the mother has many concerns in relation to the father, her observation of the children when they were told (in the mother’s company) that they were going to see their father, they became excited and associated seeing their father as a happy event. She said that, had the mother been attempting to influence the children to a negative view of the father, or otherwise seeking to impede that relationship, that would be an unlikely response. She suggested that the children’s reaction informed her that the children were unlikely to have been exposed to negative talk about the father, or otherwise influenced to see him in a poor light. Further, she said that when the children went to the father, they were not stand-offish, in that they were not waiting to obtain their mother’s approval to do so.
Whilst (given the mother’s view of the father) it may seem somewhat miraculous that she has not sought to poison their relationship with him, nonetheless that appears to be the case.
On balance, and concededly remarkably, I am satisfied that the mother would facilitate a relationship between the children and father.
There was no material to suggest that the father would not be willing to facilitate a relationship between the children and the mother.
EFFECT ON CHILDREN OF SPENDING LIMITED SUPERVISED TIME WITH FATHER
Ms F’s evidence in this respect was not controversial. She opined that if the children were to spend limited supervised time with the father, they both would “get sick of it pretty quickly” and that B would feel frustrated and upset. Whilst she agreed that limited supervised time was a poor alternative, she accepted that it was better than no time at all. However she conceded that it is likely that as the children age, they will question why it is that they are spending time with their father under such circumstances, unlike many of their peers at school. She said that that could have a negative impact upon the children as they grow up, in that it could lead to self-esteem issues if they perceive that the father presents a risk of harm to them which can only be sufficiently mitigated by supervision. Further she said that it could become counterproductive, in that B could end up becoming angry with the mother having restricted his relationship with his father to that extent.
As to how any diminished self-esteem may play out, she expressed the opinion that children could lose their sense of self-worth, which could become expressed through depression or oppositional behaviour, and could in turn lead to poor academic and social progress. Whilst it is difficult to predict, and the response could be anywhere in the range of little effect to considerable effect, she was of the view that the consequences would nonetheless likely be real.
I am satisfied that the likely effect on these children of spending only limited supervised time with their father is as Ms F suggests, and that they would not obtain from that time the significant benefits which the father otherwise has to offer them.
COULD COMMUNICATION SUPPORT SHARED PARENTAL RESPONSIBILITY
This ultimately proved to be an interesting ground of difference. Ms F’s evidence was that the parties cannot adequately communicate at this stage, and may never be able to do so. However the father pointed to the fact that the parties do have a demonstrated history of communication, and for instance, have been able to agree upon the school that B should commence upon this year. Indeed the Independent Children's Lawyer supported the father’s proposal for equal shared parental responsibility, and suggested that the parties should utilise a particular website for the purposes of effecting email communication in relation to the children.
For her part the mother said that the father had failed to appreciate, or take responsibility for, the part which his dishonesty had played in the breakdown of the relationship, and continues to play in relation to how the mother perceives him. I accept that is likely true. However there is another factor at play, and that is that the mother and her family appear to have a somewhat atypical sensitivity to sexual matters, and appear to think that there is some moral or ethical problem with the father’s photography hobby. Moreover, I have little doubt that the mother’s family are responding sympathetically to the inevitable hurt that she has suffered, and they are attempting to support her through that process.
I accept that indeed, in recent times at least, the parties have been able to sufficiently negotiate issues in relation to the child’s life and decisions relating to it, that gives some cause for hope that they will able to do so in the future. I am by no means confident of that prediction, but on balance it appears to me that the foundations for adequate communication going forward, likely presently exist.
SECTION 60CC CONSIDERATIONS
Although it will be appreciated that I have already dealt with both primary considerations, and a number of the additional considerations, nonetheless by reference to s 60CC I make the following further observations.
Both children are too young to express any views.
Even if it be that the father during B’s early years did not fully engage in parenting, plainly that is no longer the position.
The parties live close by each other, and intend to continue to do so in the future, such there is no practical difficulty or expense in the children spending regular time with both parents.
PARENTAL RESPONSIBILITY
Even if the father did, as the mother asserts, sexually assault her by placing his hands on her buttocks in 2007 to manipulate her body to take photographs of her genitals, it was the only episode of family violence in the course of the relationship. Particularly it was not suggested that this was otherwise a domestically violent relationship, or that the father engaged in coercive or controlling behaviour. In fact in that regard I note that the father says that the mother’s tight control of the parties’ finances was itself a form of family violence.
It is unnecessary to consider the matter further, because ultimately I am persuaded that even if the presumption did not apply, it is nonetheless in the children’s best interests for there to be equal shared parental responsibility. I say that because the father plainly has a great interest in his children’s lives, and has much to offer them. There is no suggestion that any assault by the father means that the mother is not able to equally negotiate with him, or is otherwise impaired in doing so, or that any such assault means that the matters which he could contribute to decision making in relation to the children are diminished in any way.
WITH WHOM SHOULD CHILDREN LIVE
Ultimately the father’s position was to concede that the children should primarily live with the mother. The only real dispute was as to the number of nights per fortnight that the father should spend with the children.
I am satisfied that indeed it is in the children’s best interests to primarily live with the mother. Particularly:
·She has been the primary carer to date;
·Save for her not entertaining any scepticism as to what the children tell her, she is otherwise an excellent and devoted mother who plainly loves these children and is intending to raise them in the best manner possible;
·Living primarily with one parent is likely to provide a degree of stability for the children.
I am particularly mindful that in in T v N [2001] FMCAfam 222 Ryan FM (as her Honour then was) at [93] listed the following factors that the court “should particularly examining in cases where a party seeks orders that they share a time equally”:
The factors that the court should particularly examine in cases where a party seeks orders that share a child's time equally between its parents (or others) include the following:
·The parties’ capacity to communicate on matters relevant to the child's welfare.
·The physical proximity of the two households.
·Are the homes sufficiently proximate that the child can maintain their friendships in both homes?
·The prior history of caring for the child. Have the parties demonstrated that they can implement a 50/50 living arrangement without undermining the child's adjustment?
·Whether the parties agree or disagree on matters relevant to the child's day to day life. For example, methods of discipline, attitudes to homework, health and dental care, diet and sleeping pattern.
·Where they disagree on these matters the likelihood that they would be able to reach a reasonable compromise.
·Do they share similar ambitions for the child? For example, religious adherence, cultural identity and extra curricular activities.
·Can they address on a continuing basis the practical considerations that arise when a child lives in 2 homes? If the child leaves necessary school work or equipment at the other home will the parents readily rectify the problem?
·Whether or not the parties respect the other party as a parent.
·The child's wishes and the factors that influence those wishes.
·Where siblings live.
Accepting that the legislative framework has changed since that decision, there is nonetheless no reason to think that as a practical matter those considerations do not remain live in determining whether or not equal shared care is likely to work. Plainly many of them are not met in this case.
I am therefore satisfied that a regime of equal time would not be in these children’s interests, but rather that they should primarily live with the mother.
TIME WITH FATHER
Ultimately the parties’ positions in relation to time were something of a muddle. The Family Report writer proposed four nights per fortnight, and although the father proposed five nights per fortnight, ultimately said that he did not disagree with the proposal of the Family Report writer.
As to the father’s five night proposal, the Family Report writer was critical of it, because it involved a large number of changeovers, and moreover she was of the view that five nights per fortnight was simply too much for the children and the mother, and could be counterproductive. It was this which informed her to propose that the children spend from Friday after school until Sunday evening with the father each alternate weekend, and one overnight on a week night each week.
The Independent Children's Lawyer proposed a gradually increasing regime of time. She proposed that would increase to the point where, from 1 February 2019, in week one there would be a block of time from after school Thursday to before school Monday, but that in the second week it would only be Thursday night that the children spent with the father.
Unfortunately this regime was not the subject of cross-examination of the Family Report writer, who concededly was mainly opposed to the father’s proposal of five nights on the basis that it was too much, too soon.
Ultimately, I am persuaded that the gradual progression of time proposed by the Independent Children's Lawyer, albeit culminating in five nights per week in about two and half years’ time is the best proposal, and will so order.
OTHER ISSUES
The only other significant issue in dispute between the parties was whether the father should be obliged to attend certain counselling as recommended by the mother’s shadow expert, Dr H. Whilst not conceding that he needed to attend such counselling, the father indicated that if he was ordered to do it, he would of course undertake it, and his own mother suggested that she would support him in doing so.
Really it was only the Independent Children's Lawyer who opposed the order for counselling, accepting that the father was begrudging.
I accept that the father needs to have better insight into the mother’s perception of him, in order to assist him to deal more easily with her into the future. At the very least, the counselling should enable him to obtain some techniques for dealing with the mother. It can do no harm. I say that particularly in view of the fact that I propose to make orders for equal shared parental responsibility as has been seen.
For those reasons I am satisfied that there should be an order requiring the father to attend the relevant counselling, but that otherwise there should be orders proposed by the Independent Children's Lawyer.
CONCLUSION
For these reasons there will be orders as set out at the commencement of this judgment.
I certify that the preceding one hundred and forty six (146) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 13 June 2016.
Associate:
Date: 13 June 2016
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