LONGLEY & DUCHAMP

[2018] FamCA 42

FAMILY COURT OF AUSTRALIA

LONGLEY & DUCHAMP [2018] FamCA 42

FAMILY LAW – CHILDREN – PARENTING- where the father does not file evidence and attends.-where he does not seek an adjournment-where there has been a delay in the proceedings which has not assisted in the development of any relationship-where orders were made by consent (and some not) for supervised time of a very young child which ended in distress-where there is a drug and violence problem- where the court does the best it can.

Family Law Act 1975 (Cth)

Deiter and Deiter [2011] FamCAFC 82
In the Marriage of A (1998) FLC 92-800
M v M (1988) 166 CLR 69
Stott and Holger & Anor [2017] FamCAFC 152

APPLICANT: Mr Longley

RESPONDENT: Ms Duchamp

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 8725 of 2013

DATE DELIVERED: 2 February 2017

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 13 December 2017

REPRESENTATION

THE APPLICANT: In Person

COUNSEL FOR THE RESPONDENT: Ms Goldsworthy

SOLICITOR FOR THE RESPONDENT: McIntyre & Statton

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Arnold

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Cathleen Corridon & Associates

Orders

1. That the mother have sole parental responsibility for the child B born … 2012.

2. That the child live with the mother.

3. That the father’s application filed 10 September 2013 is dismissed.

4. That the Independent Children’s Lawyer is discharged from the proceedings.

5. That all extant parenting orders are otherwise discharged.

6. That pursuant to s.65DA(2) and s.62B, 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 adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Longley & Duchamp has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 8725  of 2013

Mr Longley

Applicant

And

Ms Duchamp

Respondent

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. These parenting proceedings about the child B who was born in 2012 were commenced when her father, Mr Longley filed an initiating application on 10 September 2013 in the Magistrates’ Court of Victoria. He then sought time with the child.

2. The child’s mother Ms Duchamp was the respondent to the father’s proceedings and opposed the orders he sought.

3. In the course of time, an independent children’s lawyer was appointed and at trial, Ms Corridon through her counsel, opposed the father spending time with the child.

Delays

1. It has taken some 4 years and 3 months to reach this position and the court file shows an unfortunate history of the matter not being finalised. The relevance of that observation is that the father maintains he has done everything he was asked and always attended court. Unfortunately, I have to disagree.

Sexual abuse allegation

1. I propose to set out the litigation history to make clear that regardless of who is responsible for what appears to be an inordinate delay, and accepting that the Court has to take some responsibility for that, time has passed by. I find that there is no evidence of a positive nature to enable the court to even contemplate the father being involved in the child’s life at least in the foreseeable future. Indeed, not only is there an absence of positive material about the prospect of any form of relationship, there is an additional dilemma for the Court in that one of the mother’s other children has made serious allegations of sexual impropriety against the father. Allegations are just that, but here, that child is now over 16 years of age and made her complaint on two separate occasions. Those complaints were, at least on one occasion, investigated by a specialist police squad but, according to the mother, they declined to do anything because:

   (a)It was the father’s word against the child (then aged about 12 years; and

   (b)the child did not want the matter pressed.

2. The father was interviewed by the police at the time and denied any wrongdoing. Nothing further eventuated from the police but the mother said in evidence that her daughter has told her she might reconsider her position in the future.  She is now 16. 

3. The dilemma about orders for the child arises simply from the lack of evidence about this allegation such as to enable the Court to make a finding in respect of s 60CC(2). Whilst the father maintains he has done all that was required of him, the lack of a response other than a denial has made the task harder.

The directions hearing October 2017

1. This matter was set down before me on 2 October 2017 for a directions hearing in anticipation that it would be given a final hearing within 3 months. That time would have enabled the preparation, filing and service of all matters the Court needed. A family report was to be prepared to give expert advice to the court.

2. At the directions hearing, the father was represented by counsel who said that his client did not want to come into the courtroom. Logistically that made the depth and nature of the inquiry more difficult but I stood the matter down on occasions to enable counsel to obtain instructions particularly having regard to the allegations being made by the mother. Those allegations include those that I have already mentioned but in addition, it was said that there was a history of violence, intervention orders, drug usage (if not addiction) and avoidant behaviour of the father in not undertaking drug tests. That last allegation was again made at trial but this time by the Independent Children’s Lawyer who said that requests for the provision of “screens” have not been fulfilled.

3. Against those problems, it was said that the father had undertaken various courses required of him and as it now transpires, at some stage, he had the care of two children from his own former relationship. The absence of evidence about that gives me no confidence as to his present position.

4. Despite the absence of the father in the courtroom in that directions hearing and because of the extraordinary delays to which I shall turn below, this case had to be brought to a head for the child’s sake.

5. There could be no doubt that as at October, the case was proceeding and the timetable was set even if it was tight. The father’s counsel was present in the courtroom when the orders were made setting down the final trial date.

6. The October 2017 orders required all parties but relevantly, the father, to file and serve an amended application and affidavit by 13 November 2017.  The amended application was necessary because, apart from anything else, the only application for orders on the file seemed to be the Magistrates’ Court document from 2013. Logic dictates (although I remain unsure that the father saw it that way) the child is not the child now that she was then.

7. Despite the order, the father filed nothing. His solicitors filed a notice indicating they were no longer acting for him.

The father’s attendance at trial

1. When he attended the final hearing without legal representation, the father said that he had tried to contact his previous lawyers but they would not answer him. He accused them of retaining his papers; he made specific reference to them retaining certificates for the courses that he had attended.

2. There are a number of problems with the father’s position. First, the order was directed at him, not his lawyers. Secondly, to the extent that his lawyers would not give him his files and papers, he could have searched the file, spoken to the Independent Children’s Lawyer for copies, or gone back to the various organisations that had given him these “certificates”. But what I consider most indicates the lack of attention by the father is that during the period between October and trial, he had been charged by police with a number of drug offences including trafficking. He appeared before the Magistrates’ Court where he was represented by lawyers. He was convicted and sentenced to 6 months imprisonment and has, with the assistance of those lawyers, appealed to the County Court.

3. When I asked why he had not obtained the services of these lawyers to assist him, he brushed off my inquiry saying that they would have assisted him but they wanted him to get his “papers”. He also said that he had asked another firm to act for him and they too wanted the papers.

4. These “papers” could hardly be said to be decisive of anything other than perhaps that he had done whatever other judges had asked of him in the past. Nothing he said addressed the issue of how he would have any relationship with the child.

5. When I asked him what he wanted to do, he said that he wanted to see the child. Having regard to the serious allegations against him which remain unanswered, pursuing his papers and certificates was hardly likely to answer the real problems here. He did not seek an adjournment albeit I asked him several times what he wanted the Court to do. It is almost self-evident that if he had not obtained legal representation to date, he needed to show that there was some prospect of that occurring. Absent that representation, he had to do what many litigants in our community are now facing which is to represent themselves.

6. Had he deigned to attend the courtroom  in October, he would have understood the way the matter was to be litigated and prepared. I have no reason to doubt his counsel explained the relevant obligations to him. Even if his solicitors refused to speak to him, he knew of the hearing date. He also knew of the family report appointment. He did not attend that because he had a medical appointment and the family consultant accommodated him two days later albeit she did not have an opportunity to observe parent and child. I suspect that even had she had that opportunity, it would have made little difference because of the absence of evidence. It was not the first time that a family report had been undertaken in this case. The reports do not make flattery reading.

7. The father made his position clear to the family consultant that he was being persecuted and that probing questions would not be answered because he thought the mother would use them against him. He is an experienced litigator so there might be some substance to that. As I explore below, there was an ex parte order made by a state magistrate that the father be the subject of an intervention order for 10 years. When he had the opportunity to have that heard again, the mother consented to it being reduced to 3 years. The fact that the father consented to an order at all indicates the nature of the background.

8. In my view, this case has to be heard because the child is now almost 6 years. She has seen her father only a handful of times since her birth. She told a previous family consultant that her father was dead. I permitted the father to ask questions of the mother and he wanted to know why the mother had told the child that lie. The mother’s response was that she had not done so. He also put to her that she lied about her own drug usage but she was emphatic that she had not used drugs since the child’s pregnancy. Even if that was untrue, and I have no reason to find that, what other parent does the child have?

Father and daughter relationship?

1. I asked the mother how in the circumstances of the child’s lack of knowledge of her father, any relationship could be commenced. The answer is almost self-evident. The local contact centre will not take the parties. There is no mutual acquaintance to develop a relationship. There is no readily recognisable psychologist who could work with the parties because each of them has no money. Any relationship here would have to be built slowly.

2. In the context of that sad background, there are other matters that need to be considered in the absence of any evidence from the father.

3. The mother filed her affidavit on 20 November. The Independent Children’s Lawyer relied on family reports dated 25 August 2015 and 12 December 2017. There was also a report of a psycho-sexual assessment conducted by Psychologist Mr C in July 2017. That was of little assistance and, as Mr C was potentially the father’s witness, he should have been called.

4. The orders that the mother seeks include sole parental responsibility and that the child live with her. Her case is that the father poses an unacceptable risk of harm if he were to spend time with the child. That concern arises from the allegation earlier mentioned that the father sexually abused her older daughter, D. She also alleges that the father poses a risk to the child given his recent conviction for drug related offences in July 2017 and her allegations of a history of abusing drugs.  The evidence, poorly presented by the mother as it was, supports the conclusion that there is an unacceptable risk of harm to the child.

Litigation background and evidence

1. The parties’ history can be stated briefly and the following facts arise from the mother’s unchallenged evidence. The father observed that her evidence was “a bit ify” but he produced nothing to say what was incorrect.

2. The father was a frequent cannabis user. The mother admitted that she also used cannabis prior to the child’s birth.

3. The father visited the child in hospital and thereafter saw her on around six occasions in 2012 but has had no contact since Easter 2012.

4. In mid-2012, D, then 11 years old, stayed with the father for one night. D said on the following day that her father grabbed her “on the bottom”. The mother called the father and asked him what had happened and he denied any inappropriate behaviour.

5. In May 2013, the mother initiated and facilitated a number of video calls between the child and the father but she ceased that arrangement after two weeks as the father used the time to abuse her. It is not said what could have been said or done between the father and the child at that time because she was only 15 months old. the child’s concentration span must surely have been difficult.

6. In May 2013, the mother applied for an intervention order against the father as a result of text messages in which he threatened to kill her. At court in June 2013, the father threatened to “slice [her] throat” if the child was listed as an affected family member on the intervention order. She says she feared for her safety and did not proceed to put the child on the order. An intervention order was made for a period of 12 months, naming the mother and her two other children as affected family members.

7. In July 2013, D, then aged 12, alleged that the father had touched her in the vaginal area. That led to SOCIT in E Town investigating and in turn that led to D engaging with CASA for counselling. That counselling stopped about a year ago.

The litigation begins

1. On 13 September 2013, the father brought proceedings in the local Magistrates’ Court and the mother responded. She consented to him having supervised time with the child notwithstanding a number of obvious things.  First, there is the absence of contact to that point;  secondly, the fact that the child was only 18 months old; and thirdly, there was a history of threats of violence. I inquired why the mother agreed to an order at all and she said that the magistrate told her that she was not allowing any “no contact” mother in her court. The mother said that her lawyer then told her she had to consent. If all of that is true, and I have no evidence to the contrary, that was appalling having regard to what was undoubtedly the absence of the father and daughter relationship at that time.

2. The court then adjourned the matter to the Federal Circuit Court where it joined the local circuit list.

3. The “consent” arrangement endorsed by the magistrate required both parties to apply for supervised contact at F Group and to Victoria Legal Aid for Roundtable Dispute Management. There is some significance in the latter because, taking into account the nature of the parties’ relationship, one wonders what that would have achieved.

4. The father spent supervised time with the child on 3 occasions, the first of which occurred on Friday 1 November 2013. The Children’s Contact Service advised the parties that the service was unable to provide further supervised contacts due to the limited availability of the parties rather than the service.

5. On 12 November 2013, Judge Hughes in the Federal Circuit Court ordered an expert provide a psychiatric and psycho-sexual assessment of the father that would address, amongst other matters, whether unsupervised contact should take place between the father and the child. The court file indicates that was an agreed position of the parties so both parents had begun to determine the parameters of their parenting dispute.

6. On the next return date 18 February 2014, Judge Hughes made interim consent orders. The father was to attend with psychologist Dr G to enable an addendum to his report. The order also provided for the child to spend time with the father at the Children’s Contact Service on a Saturday or Sunday at such times and on such conditions as stipulated by the service. No set time, duration or commencement date was set for that time to begin. Not much happened but again, that must be seen as the parties doing.

7. On the third occasion the parties were in court, 29 July 2014, orders were made by Judge Stewart in nearly the same terms as the previous order. That is, it ordered that the parties do all acts and things to obtain an addendum report from Dr G. The parties were to do all things to have the child spend time with the Father at the Children’s Contact Service. But this time, the Victorian Department of Health and Human Services DHHS was requested to provide to the court notifications, assessments and reports pursuant to s 69ZW of the Act. This seems to have been precipitated by the allegations against the father.

8. The proceedings were then transferred to the Family Court with a request that the Magellan Registrar consider its placement in the Magellan list.

9. As for the psycho-sexual assessment, Dr G prepared a report on16 December 2013. The order for an addendum report arose because Dr G found the father to be “consistently uncooperative” and lacking collateral information. That hindered his conclusions.  The father consented to the addendum report being done from which I must conclude he acknowledged his lack of cooperation.

10. The mother provided her documents to Dr G on 18 April 2014 but received a response by telephone informing her solicitors that the father had not made an appointment. In July, an order for the preparation of that addendum report was again made. By email dated 24 September 2014, the mother’s solicitors received a communication from Dr G that the father had called him on that day “with abusive language, making incorrect claims regarding me and my practice, threatening to make a complaint to various boards and indicating that he will protest outside my offices and disrupt my practice”; Dr G advised that he could no longer undertake work in this matter as it represented a “conflict of interest”.

11. The falling out with Dr G led to the psychological assessment by Mr C.

12. In 15 April 2014, the Children’s Contact Service said that it would not provide supervised contact because the father had indicated that he “does not wish to use the service”. One must ask then, why, on 29 July 2014, Judge Stewart  made orders for contact to be supervised by the same service which the father had previously refused to engage with.

1. There were also, at that time, intervention orders proceedings between the parties. On 29 September 2014, the following words appeared in the intervention order:

   Further order that it is noted that provided the Respondent does not commit family violence, then his family (not respondent himself) may greet and cuddle the child if they see her in public.

2. The father obtained an interim intervention order in May 2014 against the mother and a final intervention order June 2014, naming himself and his two older sons as affected family members.  This was to restrain the mother publishing on the internet, by email or other electronic communication, any material about the “protected persons”.

3. The father’s application for that order is stated in the summons as:

   anyone who knows me. [Ms Duchamp] is determined to destroy my life as she threatens constantly. With the way intervention orders work there is nothing stopping [Ms Duchamp] posting threats and any type of harassment on internet. I strongly believe her facebook account should be removed. She has been warned by police about it.

4. With the proceedings for parenting orders now transferred to the Family Court, procedural directions were made by a Registrar on 3 September 2014 to adjourn the matter to a list of cases awaiting allocation to a judicial docket with priority.  That did not happen.

5. On 7 May 2015, Bennett J set the trial for 19 October 2015 and directions were made for the parties to file material and for a family report to be prepared. Curiously, despite these parties’ histories, Bennett J also ordered that the parties participate in a round table conference through Victoria Legal Aid’s Family Dispute Resolution Service.

6. A Family Report was released on 25 August 2015. The Family Consultant observed time between the father and the child, although the father was initially reluctant to participate. Her observation, at [48], was that “[the father] engaged with her in a very appropriate and child centred way…and the interaction was very friendly.” At that time, the child was 3 years and 6 months old. That was the last occasion on which the father spent time with the child.

7. But, on 9 October 2015, Bennett J ordered that the trial be vacated and the matter be set down for trial on 18 April 2016. I am unable to ascertain why that happened but with the clock ticking and no relationship extant and the child getting older, that further delay did not help.

8. Bennett J also discharged the order that the parties participate in a round table conference through Victoria Legal Aid’s Family Dispute Resolution Service on the basis that the family was assessed as unsuitable for intervention by the service. Her Honour had previously been requested to make that order by consent of the parties, through correspondence.

9. On 18 April 2016, which was to be the trial date, orders were made by Cleary J by consent of the parties that the proceedings be adjourned to a date to be advised and that the father attend a Men’s Behavioural Change Program, attend a psychologist for the purpose of therapeutic counselling for family violence and men’s behavioural issues and undertake supervised urine drug screens within 24 hours of a request and provide results of the same forthwith to the other parties. Whilst that was a consent order, this case had no clear ending in sight.

10. The matter came before Bennett J again on 15 July 2016 where her Honour again ordered that the parties participate in a round table conference through Victoria Legal Aid’s Family Dispute Resolution Service. I am unable to ascertain from the file or the mother’s affidavit material what had changed. Needless to say, it was a pointless order.

11. However, on 11 October 2016, orders were made by Bennett J by consent of the parties that the final hearing be vacated. The independent children’s lawyer co-signed the parties’ request presumably thinking that some form of mediation might assist.

12. The Legal Aid’s Family Dispute Resolution Service was again asked to mediate.  Nothing happened.

13. In the updated family report in 2016, a family consultant observed that the father had not spent time with the child since her last assessment. At that time, she observed that he maintained that he saw no good reason for his time to be supervised at a contact centre and for that reason he did not agree to participate in it. She reported that the father remained firm in his beliefs and that “it appeared he would choose to forego time with the child rather than participate in something that he believes he should not have to do.”

14. On 24 November 2016, Bennett J made further consent orders that the matter be returned to the list of cases awaiting allocation to a judicial docket. It is important however to observe that interim orders were then made that the father spend supervised time with the child for up to two hours on a fortnightly or monthly basis at a supervised contact centre, depending on availability of the service and financial capacity of the father.  But that had the proviso that he provide a letter or certificate of completion in undertaking a Men’s Behavioural Change program and psychological counselling. The father was also to attend a psychiatrist to obtain an assessment in relation to his mental health, diagnosis and prognosis and a clinical psychologist to obtain a psycho-sexual assessment.   I do not know whether that all happened.

15. I stress that these proposals were the parties’ drafting but one must ask why those orders were made when the father’s indication to the Family Consultant was that he did not agree to participate in supervised contact.

16. Although it is conceivable from what the father said that he did all of these things, the time has passed by and the child knows nothing of her father. Thus, just doing these courses would have made little difference if there was no prospect of any relationship forming.

17. The child commenced school in 2017.  She is in good health and doing well.

18. The mother still alleges that the father has been abusing illicit substances since the time of their relationship prior to the child’s birth. She claimed that the father told her during their relationship that he had developed strategies to avoid a positive reading on drug tests that he took for work purposes. She provided a detailed statement of what he told her. She alleged he is known to sell ICE to underage children. She does not identify the source of her information stating that she fears that the father will retaliate if she reveals those persons identity. The mother’s affidavit is full of that sort of allegation and the disclaimer that she cannot, for her own safety and that of her informants, mention names. The lack of detail in a parenting case such as this is astonishing and must be given little weight but on the other hand, the father produced nothing either.

The positions of the parties

1. The father’s 2014 application sought the following orders:

   1.That the father and the mother have joint parental responsibility for [the child]…

   2.That [the child] live with the mother.

   3.That the father spend time with and communicate with [the child] as follows:

   (a)each Tuesday night from 4.00pm to 7.30pm;

   (b)each Thursday night from 4.00pm to 7.30pm;

   (c)each alternate weekend from 20 September 2013 to 4.00pm on Friday until 5.00pm on Sunday;

   (d)for the second half of the school holidays in each year to coincide with the time when the other children of the applicant father spend time with him;

   (e)(Then a variety of special occasions).

2. It will be self-evident that time has moved on. Even so, two things stand out. There is no prospect of these parents meeting the obligations in s 65DAC of the Family Law Act 1975 (Cth) (“the Act”) to communicate with each other in respect of any decisions about the future life of the child. They have not done so until now and the mother would not even tell the court her residential address saying that she had moved five times to avoid any confrontation with the father. But more significantly, the concept of the times proposed when the child was 18 months old must be seen as unrealistic having regard to the nature of the relationship between the father and the child in September 2013. That said, no other application amending that decision has ever been filed.

3. The absence of a change of proposal and the father’s silence about how any orders would be implemented with the child must mean that the court is left to work out what to do by itself. 

4. The absence of evidence by the father in the context of the mother’s allegations must also mean that the father has little to say about her significant complaints as to drug usage and violence.

5. In my view, the court has no evidence to support any orders that would enable the relationship with the child to occur.  Even if that was a sufficient basis to dismiss the father’s application, the court’s power to make a parenting order is found in s 65D which empowers the court to make such orders of the type considered in s 64B if it is proper to do so.

6. Some insight might be gleaned into the father’s views about any future role that he might fulfil in the child’s life from two direct quotes from separate family report writers.

7. In October 2016, family consultant Ms H provided a report upon an order of Bennett J and said:

   [31]While (the father) continues to hold (the mother) responsible for the lack of progress in this matter, he has not used this time well.  In particular, supervised time should have been occurring on a regular and ongoing basis with the benefit of a report to the court on that time.  The pathway has been clear and has been set for some time, that is (the father) needs to engage with mental health services and supervised time with the benefit of report to the court.

8. The family consultant then opined that the father had an inability to follow rules and instructions and had chosen to forego his time with the child rather than adhere to the rules and limitations imposed upon him.  She pointed to the fact that he had been waiting for the court to progress rather than being proactive and that he was content to wait for the intervention order to lapse.  She criticised him for waiting to “somehow be exonerated by the court system in relation to police charges and what he sees as false allegations”.  She said that he had chosen a rather stubborn pathway that meant that no time was occurring.

9. A year later, family consultant Ms J wrote:

   [28](The father) presented as highly frustrated throughout the duration of the assessment, due to his perception of persecution within the current proceedings.  His presentation appeared consistent with previous family reports.  However, given his previous portray, he was unwilling at times to answer questions, due to a belief that his responses would be considered “sexist”.  He provided limited information to questioning and declined to elaborate with any significant detail.

   [29](The father) was difficult to engage in interview at times given his perception that the process was against him, and that the legal system favoured females.  He appeared unable to demonstrate any insight or reflective capacity with regard to his own role or behaviour within the current dispute, and shifted blame towards others such as his previous legal representation or to the mother.

   …

   [32]He considered his relationship with [the child] too far gone now, due to the protracted length of the proceedings and he believed that he would not receive a favourable outcome at the defended hearing.  Despite this, he wanted his daughter to know that he had “fought” to maintain a relationship with her. 

10. Although his engagement in this hearing was extremely limited and his answers short and curt, the observations of those two family consultants were significant because they are consistent with what I observed.  Whilst he told the last family consultant that he considered things had gone too far, when asked what he thought could be done by the court, he repeated that he just wanted to see his child.

The mother’s position

1. The mother sought orders that she have sole parental responsibility, that the child live with her and that the father’s application be dismissed.

2. In her outline of case document and under the heading of “Parental Responsibility”, the mother argued she was fearful of communicating with the father and that he had sexually assaulted her daughter. She observed that there was a current intervention order which prohibited communication whilst acknowledging that the Family Law Act exemption was in the order and that the father had been convicted of breaching that order. She asserted that she had been diagnosed with, and treated for, anxiety albeit that there was no evidence of that.

3. It is still difficult to reject those submissions based on the limited evidence.

4. In an odd submission in writing, it was said:

   The mother acknowledges the potential benefit to [the child] of having a meaningful relationship with the father.  However, the mother maintains significant concern for [the child’s] safety and wellbeing due to:

   (a)The allegation of her daughter [D] of sexual assault by the father;

   (b)The father’s propensity for aggression and violence and [the child’s] potential exposure to same; and

   (c)The father’s expressed loathing of the mother specifically and females generally.

5. Just what this “potential” benefit was remained unsaid.  How such a benefit could arise in circumstances where the mother could not under any circumstances see the prospect of a relationship being commenced, was also unsaid.  The statement was a nonsense.

6. The Independent Children’s Lawyer relied on two family reports and it was submitted that the family violence rebutted the assumption of equal shared parental responsibility which therefore supported the mother’s proposal for sole parental responsibility.  In respect of contact between father and child, the Independent Children’s Lawyer was of the view that there was “very little benefit” for the child due to the possibility that the father was using illegal drugs.  There was then a submission that the court had to consider whether there was an unacceptable risk although it was not said what that risk was.  The Independent Children’s Lawyer submitted that there was an unacceptable risk here whatever that meant.

The family consultant’s question about the sexual assault  

1. Family consultant Ms J raised the issue of the sexual assault allegation against the father in the context that she had no evidence as she should have had from the father and the mother’s evidence was negligible.  Ms J said:

   (The father) declined to discuss the allegations of sexual abuse other than to say it was “disgusting”.  He denied all claims made against him in relation to [D] and stated that he did not want to discuss the topic further.  He believed the lack of criminal investigation as having exonerated him.  He further denied having his own history of childhood trauma or sexual abuse.  Despite frustrating the process of two psycho-sexual assessment (which may or may not be viewed as a complete measure of risk), (the father) appears to have been assessed as “low” risk of sexually offending within such assessments.

The unacceptable risk assessment.

1. An assessment of unacceptable risk examines the potential harm to a child.  In the child’s case, that potential harm is not just in relation to sexual assault.  It relates to social, emotional and psychological development.  For example, is the child likely to become antisocial by learning from her parents?  Is she going to be exposed to a drug culture including the prospect of being hurt by criminals, watching her parent hurt by criminals or being separated from her parent by him being imprisoned?  Is she likely to be exposed to violence such that she picks up her mother’s purported anxiety and stated fear?  Is her schooling going to be affected because she has to move constantly?  There are many other questions that need to be considered but the paucity of the evidence here is astonishing.

2. In M v M (1988) 166 CLR 69, the High Court said of the legal tests designed to assess risks:

   In devising these tests the courts have endeavoured, in their efforts to protect the child’s paramount interest, 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 the court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse. 

3. Having regard to what I earlier said, I consider that sexual abuse alone is not the issue.

4. The Full Court of this court In the Marriage of A (1998) FLC 92-800 described the test of unacceptable risk as the touchstone for inquiry and sexual abuse and assessments of risk of future physical and emotional harm to the children. In Deiter and Deiter [2011] FamCAFC 82 a Full Court identified the assessment of risk as comprising two elements. The first element required prediction of the likelihood of the recurrence of harmful events and the second required a consideration of the severity of the impact caused by those events.

5. Here, the concerns for the child arise predominantly from exposure to drugs, abuse and I would add the father’s misogynistic views.  There is also the issue of sexual abuse but I remain unsure about what happened because of the vague evidence of the mother.  The approach to the two elements obtains guidance from the Full Court decision in Stott and Holger & Anor [2017] FamCAFC 152 where the Full Court quoted from the well-known paper by the Honourable John Fogarty AM in 2006 where he said:

   Unacceptable risk in the High Court’s formulation…is all about balance.  In some cases a risk is “acceptable” when balanced against other factors and other orders.  The object of safeguards is to convert an unacceptable situation to an acceptable one where that is feasible and is of benefit to the child…

6. The evidence is vague but there are assertions against the father of trafficking.  Although he has appealed against his recent sentence, he was convicted and I would conclude that a sentence of imprisonment means that the court took a serious view of the offending on the principle that imprisonment is the last resort.  But more significantly, the conviction corroborates the mother’s complaints about the father’s history and gives credence to her concerns.  In relation to the sexual abuse allegation, despite the vagueness of the evidence, it cannot be ignored that at the time the incident was said to have occurred, D was 12 years of age.  Unlike many sexual abuse cases where a vulnerable child cannot explain what was happening because the adult concept is foreign, I have inferred that D was not in that category.  The circumstances under which the incident occurred are not said but counselling followed after the police indicated that it was one person’s word against another.  As the High Court said, in M v M (supra), it is not the function of the court to make a finding of what occurred although that is possible, but rather, the focus must be on what is in the best interests of the child.  The “low” risk assessment to which the family consultant referred, does not give me much comfort.  The fact that the allegation was made and repeated a year later and the father refused to talk about it, leaves me in a position where on the balance of probabilities, there must be seen to be a risk.

7. Whilst the sexual abuse allegations remains vague, allegations relating to abuse do not.  The evidence of threats is clear and unchallenged.  I would have no confidence that the father could contain himself not to say things in front of the child given his disdain for the mother and his apparent misogynist view.

8. Ultimately, in respect of the first of the two steps, I find that there is a risk of harm to the child in relation to all of the exposures to which I have referred.  The severity of the impact of that exposure seems to me to be great.  That conclusion can be drawn from the evidence of Ms J who said:

   [74]Any patterns of behaviour exhibited by the parties are likely now entrenched and a positive prognosis of co-parenting or amicable negotiation appears implausible.  Whilst it is certainly [the child’s] right to a relationship with her father, he does not appear to have demonstrated an appropriate focus on cooperating with the proceedings or adequately attending to the court orders in a timely or necessary manner.  His reasoning appears related to a cantankerous aversion of the legal system.

   …

   [79][Ms H] considered that the child’s relationship would likely need to be restricted to only several occasions per year in the event that (the father) was not capable of making any meaningful attitudinal changes.  Furthermore, given that supervised time has been unsuccessful to date, any consideration of time spend arrangements between the child and her father is likely to continue to draw the parties into litigation.

   [80][The child] is also progressing to an age where she will become more aware of the conflictual dynamics between her parents and any ongoing court involvement.  This raises further concern associated with possible exposure to the adult conflict, and impact upon [the child] psychologically.  Children who are exposed to family violence have poorer developmental and psychological outcomes than those who do not experience abuse or family violence.  (My emphasis).

1. Based on the unchallenged evidence and the views just expressed by the family consultant, I find that the risk of harm to the child is unacceptable.

The legislative considerations

1. Section 61DA of the Act provides that the court must start with the presumption that it is in the best interests of children that their parents have equal shared parental responsibility. That presumption is rebutted if there is family violence. In this case I accept there has been. The presumption is rebutted.

2. The mandatory considerations about how a court determines the best interests of a child are found in s 60CC. It is important to emphasise that the legislative provision requires the court to consider the various relevant factors but that can only be done efficaciously if there is evidence. While court files often contain a whole pile of papers, it is not the task of a judge to read everything there in the hope of finding some relevant answers. It is for that reason that when this case was set down for a final hearing, the specific orders were made for the filing of affidavits and the notation followed that parties could not rely upon previously filed material. It is otherwise unnecessary that I justify that approach here.

Section 60CC(2)

1. Primary considerations are contemplated in s 60CC(2), the first of which is the benefit to the child of having a meaningful relationship with both parents and the second is the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

2. These two concepts can, and in this case do, clash.

3. The father’s consistent stance is that he just wants to see the child or, in other language, that the child is entitled to have the benefits of a meaningful relationship with both parents. Leaving aside what I consider to be an unacceptable risk that contact with the father would potentially be destructive of the child’s relationship with her mother, what evidence is there of any benefit to the child in the sort of relationship with her father that he contemplates? Pointing to his role as a father of two other children does not assist him. I do not know their circumstances. Thus, what benefit can the child obtain from a father who has the views expressed to the family consultant and who now faces drug offences and potential imprisonment? The answer must be that there is little benefit.

4. Based on my finding of an unacceptable risk, I am concerned that any time with the father may amount to an exposure to abuse, neglect or family violence.

5. As such, the two concepts are in conflict and s 60CC(2A) provides:

   In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).

6. Section 60CC requires the court to contemplate additional considerations. They can be grouped.

Section 60CC(3)(a)

1. The child’s views are not helpful here because there is no evidence about her maturity or level of understanding of what this is about. She does not know the father and as such could not have a view about what benefits she could receive. That she has had no contact and therefore no understanding of the father means that if any contact arrangement was considered, it would have to be an introduction approach but there is evidence that the avenues do not exist.

Section 60CC(3)(b),(c),(d),(f),(i)

1. The nature of the child’s relationship with her mother was observed to be fine. There is no evidence that would enable me to assess the father. But, that leads to other considerations such as the extent to which the father has failed to take the opportunity to participate in making decisions. It is implausible to expect a threatened and fearful person to co-operate in working with another parent about parenting decisions. To some extent, the father’s refusal to participate in the contact supervision arrangements has led to this problem but his conduct towards the mother has also created a hostile environment which militates against co-operative parenting. The evidence points to the father’s neglect for that problem.

2. The father had the opportunity to develop a relationship with the child and whilst I accept that the court system has not assisted in a resolution quickly of this matter, I accept the evidence of the family consultant that the father has not assisted. He has certainly assisted financially to the extent that he is apparently able but that does little towards the costs of a child. I do not know whether his contribution has been determined on a voluntary or other basis.

3. I do not know how any orders would affect the child other than that the last supervised contact came to an end because the child was distressed. That is hardly surprising having regard to her then age. It defies logic to have a very young child handed over to a stranger who is charged with the task of being the supervisor of another stranger’s time with that child. That is what happened here regardless of the best willed intentions of the parties.

4. It is time to stop experimenting with a relationship. No relationship exists and that can be seen even from the father’s own question of the mother as to how the child understood that he was dead. If any attempt was now made to start again, it would take a lot of evidence to persuade me that there was any prospect of a benefit to the child.

5. The capacity of the father to provide for the child’s needs including emotional and intellectual needs is unknown. His observation that he had two other children does not fill me with confidence having regard to a suggestion that the police material shows that one of those children was highly critical of the father. The truth of that was not investigated but to involve police must mean there was a problem. If that is happening in the father’s household, how could I be satisfied that the child would have her emotional needs met. I do not know what he has to offer.

6. A significant factor here is the attitude of the father to the responsibilities of parenthood, demonstrated by each parent. The mother concedes she has had a chequered past but she is all the child has. In respect of the father, the involvement in drugs and apparent crime must mean that he puts those matters ahead of the child in terms of importance. What better example than the fact that he placed emphasis of having lawyers represent him in the criminal proceedings but did nothing about these matters.

Section 60CC(3)(j)

1. Family violence here is not disputed. The threats are chilling leaving the mother saying that she is fearful and moving house to avoid the father. How could any responsible parent raise a child in that environment knowing that the father was going to be a participant in the child’s life on a regular basis?

2. I accept that all of the matters above are findings against the father such that I could not say that it was in the best interests of the child to have a relationship with her father at this time of her life.

   (i)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;

   (ii)any other fact or circumstance that the court thinks is relevant.

Section 60 CC(3)(l)

1. I have contemplated the edict of parliament set out in s 60B but there is no way I can see any such relationship being developed. The court has delayed the finalisation of these matters and no doubt contributed to the uncertainty of the child’s future. It is time to bring all of that to an end.

I certify that the preceding one hundred and seven (107) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 2 February 2017.

Associate: 

Date:  2 February 2017