Langley and Folett
[2016] FamCA 137
•8 March 2016
FAMILY COURT OF AUSTRALIA
| LANGLEY & FOLETT | [2016] FamCA 137 |
| FAMILY LAW – CHILDREN - With whom a child lives - Best interests of child FAMILY LAW – CHILDREN - Relocation |
| Australian Passport Act 2005 s 11(1)(a) and (b) |
| AMS v AIF (1999) 199 CLR 160 |
| APPLICANT: | Ms Langley |
| RESPONDENT: INDEPENDENT CHILDREN’S LAWYER: | Mr Folett Mr J Tallarita |
| FILE NUMBER: | CAC | 1832 | of | 2012 |
| DATE DELIVERED: | 8 March 2016 |
| PLACE DELIVERED: | Canberra |
| PLACE HEARD: | Canberra |
| JUDGMENT OF: | Faulks DCJ |
| HEARING DATE: | 22 - 25 July 2014; 13 and 15 October 2014 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Gill |
| SOLICITOR FOR THE APPLICANT: | Watts McCray |
| COUNSEL FOR THE RESPONDENT: | Ms Swart |
| SOLICITOR FOR THE RESPONDENT: | Claire Naidu & Co Lawyers and Mediators |
Orders
The children, N, born … 2002, and B, born on … 2006, will live primarily with their mother, Ms Langley.
The mother will have sole parental responsibility for the children.
The mother is permitted to relocate the permanent residence of the children to Newcastle.
a. The children will spend time as agreed between the parents with their father, supervised by a person agreed between them or in default of such agreement by a professional supervisor.
b.The frequency and duration of such times will in part be affected by the means and finances and availability of the parents but should be not less than for two hours per month in either Canberra or Newcastle. If there is no agreement, provided the supervision is arranged in accordance with these Orders by the father in advance and he gives the mother not less than 7 days’ notice thereof, for a period of two hours on the first Sunday of each month (commencing in Canberra in April 2016), alternating between Canberra and Newcastle.
c.The father will travel at his expense to Newcastle for the Sunday time with the children which is to take place there.
d.The mother will travel to Canberra at her expense for the Sunday time for the children with their father which is to take place in Canberra.
a. The father may have telephone time or skype with the children once a week between 6pm and 6.30pm with the father to call the mother’s landline. The mother will cooperate and ensure the children are available to receive such calls.
b. The call will be on a Friday unless the parents otherwise agree.
c.The parents may give 7 days’ notice to each other if he or she cannot facilitate the communication on the Friday evening but in such case, the parent seeking the change will nominate and seek actively to reach agreement about an alternative time.
d.The children may telephone their father at any reasonable time.
The father will pay for the supervisor of the time he spends with the children.
That pursuant to s ll(l)(b) of the Australian Passport Act 2005 an Australian Passport be issued for the children and the requirement in s ll(l)(a) of the Australian Passport Act 2005 that the consent of the father to issue the passport be dispensed with.
That in the event the mother intends to travel overseas with the children, the father's time will be suspended provided the mother:
(a)Provides written notice to the father of her intention to travel with the children within 14 days of the proposed date of departure; and
(b)Provides a formal itinerary including evidence of a return ticket within 7 days of the notice being provided to the father of her intention to travel overseas, together with a telephone number on which the child may be contacted whilst overseas.
That all communication between the parents in relation to the children is to be via email.
That neither parent will say unkind or unpleasant things about the other parent, or the other parent’s family and friends, in the presence or hearing of the children or knowingly permit any other person to do so.
Pursuant to s 62B and s 65DA(2), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders, and details of who can assist parties to adjust to and comply with an order, are set out in the document entitled Parenting orders - obligations, consequences and who can help, a copy of which is annexed to these orders.
All material produced subpoena which did not become the subject of exhibits will be returned by the Court to the persons producing it as soon as practicable.
Any material produced subpoena which became an exhibit will be returned by the Court at the expiration of the appeal period to the person producing it. Any material produced by a party which became the subject of an exhibit will be returned by the Court to the party at the expiration of the appeal period.
The matter be removed from the Pending Cases Inventory.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Langley & Folett 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 CANBERRA |
FILE NUMBER: CAC 1832 of 2012
| Ms Langley |
Applicant
And
| Mr Folett |
Respondent
REASONS FOR JUDGMENT
Introduction
This matter arose out of an application filed by the mother in November 2012 following disclosures of alleged sexual abuse by one of the Respondent Father’s children to a different partner. This person was not the subject of these proceedings.
The parties commenced living together in 2001. Their first child, N, was born in 2002. The parties separated for one year in 2002, but reconciled in 2003. They subsequently had another child, B in 2006. They separated on a final basis in 2006. Both parties have children from previous relationships.
Following separation a shared care arrangement was put in place for the children. N would spend 3 nights one week and 4 nights the next with his father. B was only 8 months old when the parties separated, but has spent increasing periods of time with her father, culminating in a three night per week arrangement.
In November 2012 the mother was contacted by a Care and Protection officer and representatives of the Australian Federal Police in relation to allegations of sexual abuse that had been made by C, one of the father’s daughters from a previous relationship. The mother made arrangements to collect the children from school and informed the father via her legal representative that they would not be made available to spend time with him in the immediate future. A few days later she filed an Initiating Application seeking interim orders that the children spend only supervised time and have telephone contact with their father. In response, the father sought that the former arrangements continue, and that N spend an additional night with him.
Although C withdrew her complaint in January 2013, the father was subsequently charged with possession and cultivation of cannabis.
The matter first came before Federal Magistrate Brewster (as he then was) in the Federal Magistrates Court (as it then was) on 30 January 2013. A report was ordered pursuant to s 69ZW of the Family Law Act. On 7 March 2013 interim consent orders were made for the children to spend supervised time with their father twice per week, and an Independent Children’s Lawyer was appointed. On 6 June 2013 Dr D was appointed to prepare a report as a single expert and the matter was set down for final hearing on 9 and 10 September 2013.
On 9 September the matter was transferred to the Family Court of Australia. The matter was initially set down for hearing from 5 March 2014. However, these dates were later vacated pending the finalisation of the criminal investigations against the father.
In April 2014 the mother filed an Amended Initiating Application in which she sought to relocate with the children to Newcastle. The mother’s family live in Newcastle (including her ageing parents and her sister) all of whom require additional care.
No criminal charges were ultimately laid against the father in relation to the allegations made by C, and the family law matter proceeded to trial for four days, being the 22nd to 25th of July 2014. The trial continued on the 13th and 15th of October 2014.
At hearing the mother sought the following:
1.That the mother have sole parental responsibility for the children N born in 2002 and B born in 2006 ("the children").
2.That the mother be permitted to relocate the permanent residence of the children to Newcastle.
3.That the children live with their mother;
4.That the children spend time with their father supervised by a professional contact centre once each month with the time alternating between Canberra and Newcastle.
5.That the mother be permitted to suspend and replace the father's time pursuant to Order 4 up to twice each year to enable her to go away with the children on a holiday provided she gives the father 10 days written notice of her intention to go away with the children.
6.That the father have telephone time with the children once a week between 6:00pm to 6:30pm with the father to call the mother's landline.
7.That pursuant to Section ll(l)(b) of the Australian Passport Act 2005 an Australian Passport be issued for the children and the requirement in Section ll(l)(a) of the Australian Passport Act 2005 that the consent of the father to issue the passport be dispensed with.
8.That in the event the mother intends to travel overseas with the children, the father's time will be suspended provided the mother:
a.Provides written notice to the father of her intention to travel with the children within 14 days of the proposed date of departure; and
b.Provides a formal itinerary including evidence of a return ticket within 7 days of the notice being provided to the father of her intention to travel overseas, together with a telephone number on which the child may be contacted whilst overseas.
9.That all communication between the parents in relation to the children is to be via email.
10.That each parent be restrained from denigrating or speaking in an unkind or derogatory manner to or about the other parent.
11.That in accordance with Dr D’s recommendations the father:
a.Attend upon and engage in a relapse prevention intervention program with respect to his substance abuse; and
b.Engage in psychological treatment to assist him in developing his parenting skills and awareness of boundaries and safety with respect to parenting and to improve his functioning and capacity generally.
The father sought:
That the mother and father have equal shared parental responsibility for N born in 2002 and B born in 2006 (“the children”).
That the children live with the father from Wednesday after school until Saturday 3pm every week, except that N spend from Tuesday after school until Saturday 3pm every second week and from Wednesday 3pm every other week until Saturday 3pm.
That if the father’s time is required to be supervised, that the father spend time with the children on :
a.Fridays from 3pm until Saturdays at 7:30pm; and
b.One afternoon each week from after school until 7:30pm.
That changeover take as follows:
a.On a school day, then at the children’s school; and
b.If a non-school day, at the mother’s residence at the commencement and at the father’s residence at the conclusion of the time.
That each parent encourage and facilitate telephone communication between the children and the other parent whilst the children is in their care as requested by the children but no less frequently than once every three days.
That each parent keep the other informed of their current residential address, mobile and landline telephone numbers and any available email addresses and advise the other parent of any change thereto within seven (7) days of such change.
That in the event of childhood illness or emergency the parent with whom the child or children are with, do contact the other parent forthwith to inform them.
That each of the parties, their servants and agents be hereby restrained by injunction from:
a.abusing, insulting, belittling or otherwise denigrating the other party and
b.listening to the children’s telephone conversations with the other parent.
That both parents be permitted to liaise directly with the children’s school and sporting bodies to receive school notices, information, newsletters, school reports, school photographs and any other necessary information about the children’s progress and each parent shall ensure that the children’s school have all necessary consent from the parties to provide such information and documents.
10.That each party is at liberty to attend at the said children’s school for the purposes of any function or activity normally attended by parents as well as the children’s extra-curricular activities and sporting events.
11.That if either party cancels or shortens the other’s time with the children, that the cancelling party shall provide makeup time for the hours missed with the children within 7 days.
12.That the father attend all race events (including overnight time if the race event is a multi day event) with N in accordance with the 2014 calendar and thereafter all race events from 2015 onwards upon the father providing the mother with a minimum of 30 day’s notice.
Relevant law
This matter includes allegations of sexual abuse against the father although not towards the children the subject of the proceeding. Because these are civil proceedings, any findings I make in relation to the allegations must be on the balance of probabilities.[1] In Briginshaw v Briginshaw[2], Dixon J (as his Honour then was) said:
The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of mere mechanical comparison of probabilities independently of any belief in its reality.
[emphasis added]
[1] Evidence Act 1995 (Cth), s 140(1).
[2] (1938) 60 CLR 337, per Dixon J.
In order to find, on the balance of probabilities, that the father did sexually abuse C, I must feel an “actual persuasion” that sexual abuse occurred.
If I find that sexual abuse did occur, the question then arises as to how to balance the need to protect the children from harm (as required by s 60CC(2)(b)) against any benefit to the children from having a meaningful relationship with both parents (in s 60CC(2)(a)). The authorities state that the relevant test is whether the children would be exposed to “unacceptable risk”[3] by any Orders made.
… 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.
RE ORDERS FOR LONG-TERM SUPERVISION
[3] M v M (1988) 16 CLR 69, 78
The Full Court has held that while supervised time may be ordered for the time-limited purpose of re-establishing a relationship between the parent and the child, supervised time is not appropriate as a long-term measure.[4] I add for reasons which will become apparent that perhaps it may be preferable to stipulate that supervised time is not ordinarily appropriate as a long-term measure.
RELOCATION
[4] B & B (1993) FLC 92-357, 79, 780
The pathway for making a determination in relocation matters has been explored in MRR v GR[5], Muldoon & Carlyle[6] and Sayer & Radcliffe & Anor[7].
[5] (2010) 240 CLR 461.
[6] (2012) FLC 93-513.
[7] [2012] FamCAFC 209.
In Sayer & Radcliffe The Full Court said:[8]
[8] Sayer & Radcliffe & Anor [2012] FamCAFC 209, [47].
47. It is now well established principle that, whilst some special requirements may apply, relocation cases are guided and judicial officers bound by the same legislative pathways as other parenting cases under the Act. In other words, relocation is not to be treated as a discrete issue in the making of parenting orders …
48. A requirement in relocation cases is that judges faced with a parent wanting to relocate must consider the competing proposals of both parents … It is not simply a matter of comparing the relocating party’s proposal against the status quo and allowing or denying the relocation. Rather the Court must consider each party’s proposal on its merits, in accordance with the prescribed legislative pathway.
[emphasis added]
…
51.The operation of the legislation in relocation cases has been expressly considered by the High Court in MRR v GR … an appeal from an order of a Federal Magistrate refusing to allow relocation. In joint reasons for judgment, the Court (French CJ, Gummow, Hayne, Kiefel and Bell JJ) summarised the effect of the legislation and concluded that orders for equal or substantial and significant time are to be guided by the practical feasibility of such time, not merely its desirability. Their Honours said (pages 464-465, 467):
6.Part VII of the Act (ss 60A-70Q) concerns children. It was substantially amended in 2006 by the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth). Section 60B(1) of the Act provides that it is an object of the Part to ensure that the best interests of children are met, inter alia, by “ensuring that [they] 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”. Section 60CA requires that a court must regard the best interests of the child as the paramount consideration when deciding to make a particular parenting order in relation to a child. The considerations necessary to be taken into account in determining what is in a child’s best interests are listed in s 60CC.
7.Section 65D(1) provides that the Court [...] may make such a parenting order as it thinks proper, subject to the provisions of ss 61DA and 65DAB. Section 61DA(1) requires the Court to 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. The presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child. [...] Section 65DAB requires the Court to have regard to any parenting plans entered into between the parties and is not relevant in this case.
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 (para (a)) but the Court does not make an order for the child to spend equal time with each of the parents (para (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 requires 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”.
...
15.Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible.
After considering the principles enunciated in MRR v GR, the Full Court in Sayer & Radcliffe & Anor set out “the approach to applications involving relocation of a child”:[9]
[9] Sayer & Radcliffe & Anor [2012] FamCAFC 209, [33]-[38].
33.The core principle consistently referred to in all appellate decisions involving challenges to parenting orders (including where an order for relocation is sought) is the “paramountcy principle” found in s 60CA. That is, a court must regard the best interests of the child as the paramount, but not sole, consideration.
…
36.… consideration of the s 60CC factors does not take place in a vacuum and those factors will need to be assessed in the context of the competing proposals. Some of the matters to be considered under s 60CC(3), for example the likely effect of any change in the child’s circumstances and the practical difficulty and expense of a child spending time with a parent, must also be considered when applying s 65DAA, especially s 65DAA(5).
…
37.However, it is important to emphasise … that the legislation does not mandate consideration of the relevant sections in any particular order, although a logical approach is to:
·first make findings concerning the relevant s 60CC factors;
·then consider (based on the s 60CC findings) whether equal time or substantial and significant time is in the child’s best interests; and
·then consider whether such arrangements are reasonably practicable by addressing the matters referred to in s 65DAA(5) – which may be done by referring back to the earlier s 60CC findings.
The Full Court in Muldoon & Carlyle stated that, in a case where a parent plainly wishes to relocate, the correct approach by the Court is not to consider whether the relocating parent should be permitted to relocate and whether that parent has compelling reasons to relocate. Rather, the correct approach is to consider whether it is better for the child to live with the relocating parent in the new location or to live with the other parent in the old location. The Full Court referred to AMS v AIF (1999) 199 CLR 160:[10]
[10] Muldoon & Carlyle (2012) FLC 93-513, [87]-[91].
91.Her Honour was not in error in postulating that it was not up to the court to restrain the mother from leaving O and that she was entitled to make that proposal. In doing so her Honour was following what the High Court said in AMS (supra) per Hayne J at 231-2:
217Of course, the decision of a parent who is about to move and who seeks custody may well be affected (often it will be determined) by whether he or she will have custody of the child if that proposed move is carried out. And it is, then, not surprising that counsel for the mother told the primary judge (in effect) that if the mother’s having custody of the child depended upon her staying in Perth then she would not move to Darwin. But that does not mean that the question for the Court is whether the mother is to be permitted to move to Darwin. And it does not mean that the question is whether the mother has shown a “good” or a “compelling” reason for wanting to move.
218To translate the question into this form – has the mother shown a good, or good enough reason for wanting to move – focuses attention upon the reasons and motives of the mother. But that is not the proper focus of the inquiry. The proper focus is which is better for the child – to be in the custody of the father (in Perth) or to be in the custody of the mother (in Darwin). That, of course, requires attention to what benefits will the child have, and what detriments will the child suffer, from being in the mother’s custody in Darwin. …
219The complexity and difficulty of the inquiries which must be made is increased when, as was the case here, a parent’s wish to move is expressed conditionally – I will go unless I cannot then have custody. It is more complex and difficult because there are then three competing possibilities for consideration.
[original emphasis]
The case law makes it clear that the principles to be followed in determining the best parenting orders in a relocation matter are:
1.The question of whether a parent should be permitted to relocate should not be the focus of the Court’s inquiry as to the parenting orders that would be in the children’s best interests.
2.The Court must consider each proposal in the context of what is in the best interests of the children, by reference to s 60CC factors.
3.If an order is made for equal shared parental responsibility, taking into account ss 60CC and 61DA, the Court must consider whether equal or substantial and significant time are in the children’s best interest based on the s 60CC findings. If an order for whether equal or substantial and significant time is in the children’s best interests, whether such an order is reasonably practicable, taking into account the matters set out in s 65DAA(5).[11]
[11] Family Law Act 1975 (Cth), ss 65DAA(1) and (2).
I am guided by these principles in this matter.
A preliminary word
In this matter it is not asserted that the father has sexually assaulted either N or B. Hence this is not a case where it might be asserted that because the father had abused a child in the past there may be an unacceptable risk or a likelihood or a probability that he would abuse the same child again in the future.
In this matter there is a far more complicated matrix of reasons/assertions about the father which might lead to the conclusion that the father’s continuing to spend unsupervised time with or perhaps to live with the children might impose an unacceptable risk: perhaps physically; perhaps as a role model by encouragement or by permissive behaviour to the development and wellbeing of the children.
As the father admitted to Dr D, the Single Expert retained in this matter, and also set out in some detail during the course of his own affidavit evidence and in cross-examination his has been a troubled life in many respects. He sets out in some detail the fact that when he was quite young he was seduced (he suggests) by his elder sister and had sexual intercourse with her when he was thirteen and fifteen. He also asserts that she encouraged and procured his engagement in a sexual relationship with his younger sister and that at least on one occasion they had full intercourse. Subsequently a child was born of that encounter. That young person is now an adult.
The father, although decrying what happened to him, has it appears retained an interest in incestuous sexual relationships and it has formed a part of his pornography collection. This part of his pornography collection was contained in a hidden file on his computer which was discovered by the mother.
It is also common ground that the father had commented to two of his children (from a previous relationship to the one with the mother) about their possible sexual attraction to each other. The evidence about what was said to whom is the subject of controversy. However, in this regard I prefer the evidence of C who gave evidence that her father suggested to her that she might be attracted to her brother and that he (the father) had seen the way she was looking at her brother. The father concedes that subsequently he spoke to E about this and suggested to him that the father thought that his sister may have some sort of physical attraction towards E. E in part corroborated that story.
At or about that time, the father had shared with C his pornography collection. He describes this in somewhat matter of fact terms on the basis that if she was using pornography, he prefer that she used his collection because it was virus free. He concedes that part of the collection that he shared with her related to incestuous sexual relationships.[12]
[12] T 25 July 2014 p 294
The father in one of his interviews with the police attempted to justify his retention of some of the pornography on the basis that it was a valuable trading tool. His story to various people including to Dr D and to the police was not consistent. I accept that having Courts, police, psychologists and judges trawling through his personal sexual preferences would be an embarrassing and difficult thing. Curiously, I did not form the impression that the father was at all embarrassed about it and that makes his inconsistencies even less explicable.
I am satisfied from the combined evidence of Dr D and the husband’s own recorded interviews with the police and his affidavit and his cross-examination that the father did have some interest in incestuous sexual relationships within a family. Whether this grew out of his early unfortunate experiences with his sisters it is difficult to say, nor am I qualified to pass an opinion about it.
The father was concerned that the Single Expert had mistakenly recorded that he was interested in young women post pubescence. I do not accept that this was a mistake. The conclusion reached by the Single Expert was based on some self-reporting by the father about the level of attraction he had to females of various ages. He happily recorded that he had no attraction to men or to young girls. He did however record a “six out of ten” attraction towards young women in their early teens or thereabouts. As I pointed out during the course of addresses in this matter, it was easily open to the father to record a “zero” interest if indeed that was the case. He did so in relation to young girls and men. I think it is more likely than not, to the extent that I feel persuaded that it is so, that the father does have an interest in immediately post-pubescent young women. This is in part corroborated by the husband’s admission that he felt it was all right to fantasise about young women provided he did not do anything about it.[13]
[13] Dr D’s report p 33 Trial Book p 63
Additionally, the husband had some cameras which he asserted were for use for security purposes. It is common ground, however, that he did use one of the cameras in his daughter C’s bedroom and there is no doubt that he did record material via this camera. There is no evidence that he recorded naked photographs of his daughter or of her undressing or anything of that sort. Indeed it would be strange if such footage existed as he claims, and C agrees, that he told her that the camera was in her room, he says for the purposes of catching her boyfriend entering through the window to see her (and presumably to have sex with her). C says that she put things in front of the camera to stop the camera from recording and the father, who was not a stupid man, must have realised having told her that the camera was there that this might occur.
This makes nonsense of his view that the camera was there to record the boyfriend entering and leaving. It is faintly arguable, although not to the extent of convincing me, that he saw the camera as some form of deterrent to the boyfriend. Although the ease with which its surveillance could be circumvented does not make this likely. In my opinion it is more probable then not, and I feel a sense of persuasion that, the father had a prurient interest in C and the camera was one means of potentially at least satisfying that prurient interest.
I am however not convinced by C when she describes how she awoke one night to feel something cold on her thigh and concluded without any apparent explanation as to why, that this was the father using his spy camera to photograph her naked genitals in bed. Her report of this incident records her seeing the father leaving the room when she was awakened. Although I consider it was possible that the incident may have involved the father engaging in the activities of which C suspected him, I could not feel a sense of persuasion that this must necessarily have been so.
C also asserted the father physically abused her by placing his hands inside her panties and feeling her body generally. This appeared to have occurred during evening cuddles before bed, which became more extended apparently as time went by. The father denies that this happened at all. On balance I accept that it did happen substantially as reported by C. I come to this conclusion based on the evidence of both the father and C by a piece of corroborative evidence which related to the fact that C would on occasions wear different underclothes allegedly on the basis that this meant that she was in some way interested in the physical attention of her father. This is such an unusual story in that detail that in my opinion it has the ring of truth. That was supported in my assessment by the demeanour of C in the evidence that she gave.
It was argued on behalf of the father that C should be disbelieved in whole. This was because she was not a witness able to recount precisely dates, times and other detail. I do not find that convincing as reasons for not accepting her evidence about other matters. I found the father’s evidence on most of these matters unconvincing except where corroborated by either another person or the external facts.
It was also suggested that if this occurred why did C continue (in writing) to say that she loved her father and why did she permit him or cooperate in the activities that are complained of. In my opinion this criticism is misdirected. There is no doubt (and C confirms) that she did love her father. Consequently, she was undoubtedly concerned to please him and not to do anything to offend him. I do not find this inconsistent with the actions that it is asserted that her father was carrying out.
It was also asserted that C had withdrawn her allegations and that this indicated that they were false and malicious. I do not accept this either. In the context as she explained it and which I accept, there was significant pressure on her to withdraw the allegations. Not only was this a question of her attitude to her father and her desire for his attention and affection, but I am satisfied that the father’s family put pressure on her to withdraw the allegations.
In the witness box she gave the impression of being nervy and nervous and without any disrespect intended to her at all, she seemed somewhat immature. All of those are factors which would reasonably contribute to her decision to withdraw the charges, or perhaps more accurately to seek that the prosecution not continue and to indicate that she did not want to cooperate.
And then there is the question of the father’s potential voyeurism (a condition which he freely admits he has) by taking up the skirt camera shots or looking up the skirts of women as they went up and down stairs. The father admits quite frankly that he had such material on his computer but says that he did not personally engage in taking photographs like that. I could not be satisfied to the requisite standard that he did in fact take such photographs although his use of the camera in C’s room, his possession of various cameras and his possession of material which someone produced, of the kind indicated, would generate suspicion, if not conclusion.
And there is the question of violence. It is conceded that the husband and the wife’s relationship was tempestuous even though not long-lasting. It is accepted that there was a degree of physicality about the disputes between the parties. Curiously the husband wants to blame the mother for these encounters[14] and minimises his own involvement. Even if there was a degree of mutuality, that does not excuse his behaviour and I accept, as indeed he himself conceded, most if not all of the violent actions occurred. Curiously he fails to agree that one of them did where it is asserted he threw the mother over a couch. This is not so different in kind or gravity as to have warranted a special category of denial, if I can put it that way. I could not be satisfied that that particular incident occurred but his frank admissions about what else he did allow no other conclusion but that he was violent during the relationship.
[14] Dr D’s report [123]
There is also no doubt that he was engaged in the cultivation of marijuana and its consumption over a long period. He asserted to the Single Expert that this was to enable him to control his pain and his anger.[15] He asserted he had given it up at or about the time that he was seeing the Single Expert but the question remains if this was his means of controlling his anger, what has happened to his anger since he stopped taking the marijuana?
[15] T 25 July 2014 p 303
Arguably of more concern was the fact that he allowed, at least the older children, to be engaged in some way in the cultivation of the marijuana. This is part of the evidence of E. Whether or not the children knew what the plants were, or in particular their significance as drugs, the fact that the father was prepared to cultivate them in the presence of the children and possibly with their assistance shows a complete lack of boundaries and a lack of self-control - matters about which the Single Expert comments.
Preliminary summary
Taking all of these matters into account, the concern in this matter is not so much that the father might physically assault B - although that may be a possibility. One matter of concern is the possibility that he may engender in the children, to some extent as he did with his two elder children E and C, attitudes about sex which are not consistent with ordinary community acceptability.
It is not the place of this Court and in particular, it is not my place, to impose on any particular person before the Court Society’s and more particularly my attitudes to matters of sexual preference or activity. Nevertheless, in taking into account what is in the best interests of the children as to the Act requires that I do, it is important that I should at least take account of the fact that if the children are persuaded to engage in activities which may alienate them from the mainstream of societal behaviour, it is probable that this will not be to their advantage or in their best interests. It is reasonable for me to take judicial notice that incest is not an acceptable practice in Australia and would be regarded as deviant behaviour. In addition, I would be surprised if there are many people in the community in Canberra, in which the mother and the father and the children live at present, who would accept that it was appropriate for sixteen year old girls to be introduced to or at least confirmed in their use, of pornography in the way in which the father approached this matter with C.
It seems at the very least that the father has interests outside the normal mainstream of sexual activities. (This was in part exemplified by his engagement in group sex on a number of occasions involving the mother.) In relation to this I accept the mother’s evidence not the father’s and I accept that he was the instigator and did so on the basis that he particularly wanted to have sex with the third person involved. This is corroborated (in part by at least) because in relation to one such incident it appears the mother was eight months pregnant at the time.[16]
[16] Affidavit of Ms Langley filed 9 May 2014 [43] (not apparently contradicted)
Summary about risk
This combination of factors based on the findings that I have made above would lead me to conclude that while there may be no single act referred to above which would necessarily allow me to conclude that there was a compelling case that B might be at physical risk from her father, the combination of factors would lead me to conclude that overall there would be an unacceptable risk to the best interests of both children if they were to have substantial time with their father.
That risk would include, but not be confined to, the real possibility of the inculcation in them of attitudes which may affect their ability properly to develop and grow as young adults in contemporary society.
In the ordinary course of events, that could lead me to conclude that this was a matter in which it would not be in the children’s interests to spend time with their father at all. However, that is not what the mother has sought nor what the Single Expert recommended. (It is of course a long way from what the father has sought.) In such circumstances, I need to determine whether a risk to the children of abuse, whether physical or psychological, would be substantially obviated if the time that the children spent with their father were to be supervised.
To some extent determining whether any risk is acceptable or not depends on the nature of the risk, the probability that it might occur and the protective mechanisms that might prevent it from occurring. If the father were never to see the children again that may remove both the possibility of his influence on, or his physical activities affecting the children.
That appears however to be at odds with the views expressed by both the mother and the Single Expert about the importance to the children of their relationship with their father. The father of course agrees that it is very important for him to have that relationship with the children and for them to have a relationship with him. If the children are with the father and a vigilant and protective supervisor, the possibilities of either physical, emotional or psychological abuse would be reduced to a marked degree.
Such a qualification has a number of drawbacks. On an interim basis, the parties had agreed on the father’s younger sister being the supervisor. There is no suggestion that that supervision has not worked adequately. However, it is detectable that “PA” (as the father refers to her) is, reasonably enough, no longer quite as enthusiastic about spending the time that she must necessarily spend in her supervisory activities.
In the most recent reopening of evidence the father is suggesting that his father should be the supervisor as he is now living with the father. The mother rejects this possibility saying among other things, that the children’s grandfather is too frail. There is no medical evidence about his condition at all. However, it has to be said that the father’s evidence about his early life does not lead to a conclusion that he had a strong and effective relationship with his father at all. I have no evidence about the current state of that relationship and none was proffered by the father when he was offered an opportunity to reopen his evidence in these proceedings. I am mindful of the father’s criticism of his father as reported to Dr D.[17]
[17]see her report [87] and [91]
A professional supervisor such as those at Canberra F Services or one of the other commercially-based organisations would satisfy the relevant criteria but would limit the opportunities for the time that the children might have with their father on this supervised basis.
This gives rise to the added complication that the mother wants to go to live in Newcastle. If that was so, it is common ground that it would take a five hour drive between Canberra and Newcastle for either parent and the children to enable time to be spent by them with their father. Moreover, although the mother gives evidence about, and I accept that there would be an opportunity for a professionally supervised time for the children with their father in Newcastle, the expense and detail of that were not available to me.
This means that if the mother were to relocate to Newcastle; and the children were to continue to spend time with their father; and there was a requirement for professional supervision, this would have to happen either in Newcastle, or alternatively, on the mother’s bringing the children to Canberra with a professional in Canberra.
The mother earns a reasonable amount of income. The father is dependent upon (essentially) his pension. I say this without knowing what his current state of employment is. At the end of the trial he had obtained employment as a manager for G Org. The details of that employment including what he is paid and what he might put aside for example, for the purposes of paying for supervision, were not put into evidence. Prior to that time he had been unemployed for a very long time. His obtaining of employment even if it were in some measure incited by these proceedings is to his credit and no adverse inference should be drawn in relation to it.
However, whether the husband’s income would be enough to pay for his travel to Newcastle on a regular basis and, for the supervision of the time spent with the children when he was there, is unknown to me. There is no particular nominated reason such as a job, or a course of study, in which the husband is engaged or (so far as the evidence provides) a partner in Canberra, who would be unwilling to move, so as to prevent the father from moving to Newcastle if he wished to do so. Some of the practical difficulties mentioned above might be overcome if he were to move.
It is obvious, that if I were to make orders which required the children to remain in Canberra, it would be simpler to arrange supervised time, because the travel would be eliminated for them. The question however, remains, whether it would be reasonable to impose such a burden on the mother who does not want to live in Canberra, for the express purpose of enabling the children to potentially derive some benefit from a relationship with their father.
It is to be noted s 60CC(3)(a) talks about the benefit to the children of the relationship not the desirability of the relationship itself.
The relevant provisions of the Family Law Act 1975
I have set out previously an analysis of the pathway through the legislation. In view of the conclusions I have reached above, it seems to me it would be inappropriate in the circumstances for the parties to have equal shared parental responsibility. This is so, notwithstanding that the Act imposes the presumption that it would be in the children’s best interests generally for that to be the case.
Because of my analysis of the risk referred to above and the requirement as a result of those findings that the time that the children spend with their father should be supervised, it follows that the children will necessarily be primarily with their mother.
Whether, in those circumstances, it is reasonable to constrain the mother’s freedom of movement for whatever benefit the children may derive from continuing the relationship with their father in a supervised and limited way is the question.
It is not for the mother to demonstrate “compelling” reasons to want to move. While it seems to me that an analysis of any one of her nominated reasons (including caring for her aged parents and / or her sister who has a disability) would not ordinarily provide a strong reason for the move, that is not what the authorities have indicated is appropriate.
What is required is a comparison of the two proposals and a determination of whether one would be of greater advantage to the children then the other. This seemingly simple process is far from simple.
Whether or not the children would be living a happier life as children in Newcastle or not, was not the subject of any evidence apart from the assertion of the mother who presumes that they will.
It is reasonable to conclude that the mother would be happier living in Newcastle as she would be able to discharge what she sees as her obligations to her family more easily. I do not discount the fact that the mother would it seems, prefer not to live in Canberra and some of the communications from the father since the end of the trial, and on the reopening of evidence, would indicate that his lack of boundaries and control has not yet been eliminated from his persona.
For the father to travel to Newcastle to spend time with the children in a supervised fashion would involve not only car travel of some five hours and the cost of supervision but potentially (depending upon the length of time that he spent with the children) the cost of overnight accommodation for himself.
That is of course unless he were to choose; in the interests of furthering his relationship with the children; and putting their interests above his; to move to Newcastle himself. He has given no evidence about whether he would be willing or able to do that. I note that his father is now living with him and that adds a further complication which should not be underestimated. It is however the father’s obligation to provide information about his situation; not mine to find; or the mother’s to deal with.
Balancing those factors as best I might, in my opinion, the best interests of the children lie with the mother’s ability to move freely to Newcastle if that is her wish.
However, that is not the end of complications. It seems to be common ground that N has an intense interest in motor racing. This is an interest in which his father has encouraged him; and for which his father provides substantial physical support - by being his mechanic. I accept that N is enthusiastic about this. I accept the father is enthusiastic about this. I accept that this complicates rather than simplifies matters. N has in the past, and I presume in the future, will engage in rallies which take him away from his home town (where ever that may be) to compete. To have somebody supervising the father during this period might be difficult; although in the past this has been carried out apparently, effectively, by the husband’s sister.
Is this factor enough to make a difference so far as N is concerned? It is asserted by the father, although there is no independent corroboration of it, and I decline to order a supplementary Family Report to ascertain it, that N wants to live with his father. There is even an assertion he will run away from his mother. It would be very unfortunate if he were to run away from Newcastle.
Notwithstanding that, I cannot allow myself in these circumstances to come to a conclusion which is different from that which I believe to be in the children’s best interests. I accept that N is almost of an age where he might reasonably make all those decisions for himself - even if they are wrong. I accept that in a relatively short period he might even leave school and get a job.
I further accept that it is to some extent unreasonable to place on a young man restrictions which would not necessarily impose a risk of any physical harm coming to him. It is not suggested the father has any interest in boys or that there would be any sexual assault on him by the father. However, if as a consequence of the father’s influence N were to grow up to be like his dad, in my opinion, this would be very unfortunate for him and would cause difficulties for him into the future.
In the end I must make the decision that I consider to be in the best interests of the children. If in the future, this is undone by the actions of the parties, this must not allow me to deviate from what I consider to be right.
I have dealt at some length with what might properly be described as the primary considerations under s 60CC of the Family Law Act 1975. I have also dealt, implicitly, with some of the other factors including what the parties wish (and it is clear that B also would like to spend time with her father).
I have examined the nature of the relationship with the children with their father and I have looked at the capacity of each of the parents to provide for the children’s wellbeing.
Very little of the trial was directed to the capacity of each of the parents to provide for the children’s intellectual and emotional support except in the context of the issues that I have examined at some length above. I do not doubt that the mother has the ability to provide for those matters[18] and I have indicated why I feel in some respects the father may not be capable of supporting the children to the extent necessary.
[18] See also Dr D’s report [242]
I have examined the effect of the change in the children’s circumstances occasioned by both their ceasing time with their father (if that were to be the case) and with their moving to Newcastle. I have concluded, for reasons I have set out above, that in my opinion the question of risk dictates in part the nature of the relationship the children must have with their father.
I have considered without necessarily being able to find a solution, the practical difficulties and expenses that would be associated with the father seeing the children in Newcastle - if he chooses to continue to live in Canberra.
I have examined the attitude of both parents to the responsibilities of parenthood and in particular noted the father’s inability (as diagnosed by the Single Expert) to put proper boundaries around his conduct.[19] I have noted that notwithstanding the recommendations of the Single Expert, no evidence was given by the father (in his recent application to the Court to reopen) about his having carried out any of the counselling or personality or character changes in accordance with the recommendations of the Single Expert.
[19] See Dr D’s report [245], [247] and [252]
I have considered family violence in the context of this family, and I can conclude on the basis of the father’s admissions alone, that he had engaged in violence and that it is probable, this has provided at the very least, inappropriate role-modelling to the children about the resolution of conflict. I say this being aware of the fact that his assertion is that this violence was at least in part provoked by, incited by, or indeed started by the mother. I have no doubt that if the parents are separated, the children will not be exposed to violence from the mother. I could not have the same sense of satisfaction in relation to the father.
None of the other matters referred to in s 60CC affects my consideration at this point.
In that broad context, therefore, I determine that the children should live primarily with their mother, that she should have sole parental responsibility for them. I further conclude that the children should only spend time with their father supervised by a person agreed between them or by a professional supervisor.
I am far from being confident that the mother might not, if it were left to find someone they must agree upon, continue to be difficult enough not to agree to anyone until the situation became irrelevant.
At least if the Order has a default provision then at least some avenue remains open to the father and to the children. That default must perforce be that the supervision be by a professional if there is no agreement between the parents about a “suitable” family member.
I am acutely conscious of the fact that I have been unable to resolve a number of matters including what is to happen about N’s motor racing and I am also conscious of the fact that at his age, he is approaching a point where his views about what he should do should be a strong factor in persuading the parents to assist him in to competent and effective adulthood.
I am also conscious of the fact that it was at this age that the father suffered the depredations he says he did, at the hands of his elder sister and ultimately, visited those upon his younger sister. I find it odd in the context of the father’s reports on these matters that he sees himself as the victim, and falls to see that he in turn in this process victimised his sister.
I note with significant satisfaction that the relationship between the father and his younger sister seems to be an extraordinarily good one all things considered and that is immensely to the credit of each of them.
I turn to the question of communication. I did contemplate that I should impose a ban on communication because, while I do not think that there is no unacceptable risk that the children might be physically assaulted by the father, I am deeply concerned about the attitudes he might inculcate into the children if they were to spend significant time with him.
I had contemplated the proposition that the children’s telephone and other communications with their father should be monitored by the mother. I accept that this should ensure that the children would not be exposed to any inappropriate influence or communications.
In the end, I cannot control all conduct. I believe the children should be able to communicate with their father freely. I believe their father should have, as the mother suggests in essence, two windows of opportunity to communicate with the children each week.
I note that he seeks more extensive time to communicate with them. I believe that the time he spends talking to them or skyping them or for that matter engaging in e-mails with them should not exceed half an hour on any occasion. The choice of half an hour is to a degree arbitrary, I accept. It enables the children and the father to exchange information about the activities in which they have been respectively engaged in.
There remains the question of who should pay for the supervisor. In the end I think this is a matter that must be the responsibility of the father. While I doubt that the parties will be able to reach agreement on a supervisor other than the father’s sister from the suite of suggestions made by the father, the father is ultimately the cause for the need for supervision and in such circumstances it is he who should make the payment that is necessary.
I will make orders accordingly.
I certify that the preceding ninety-four (94) paragraphs are a true copy of the reasons for judgment of the Honourable Deputy Chief Justice Faulks delivered on 8 March 2016
Associate:
Date: 8 March 2016
Key Legal Topics
Areas of Law
-
Family Law
-
Statutory Interpretation
Legal Concepts
-
Jurisdiction
-
Appeal
-
Procedural Fairness
-
Statutory Construction
3
3