MALAK & MAIRIE
[2015] FamCA 563
•21 July 2015
FAMILY COURT OF AUSTRALIA
| MALAK & MAIRIE | [2015] FamCA 563 |
| FAMILY LAW – CHILDREN – Final Orders – where father a convicted paedophile and serving lengthy term of imprisonment – where victims were biological child and his step-children of later relationship – father seeking communication orders to enable him to foster a meaningful relationship with the children – where mother opposes any contact between the father and children – best interests of the children – children unaware of the serious nature of the father’s offending or his imprisonment – risk of psychological harm – no benefit to children in maintaining relationship with father – orders sought by mother supported by evidence of Family Consultant and Independent Children’s Lawyer – orders made prohibiting the father from communicating with the children by any means. FAMILY LAW – CHILDREN – Final Orders – consideration of “the rule” in Rice & Asplund (1979) FLC 90-725 – whether there has been a change in circumstance – the Court’s power to make rulings at any point in the proceedings – consideration of “the rule” at the conclusion of the evidence – no change in circumstance – detriment to the children. FAMILY LAW – PRACTICE AND PROCEDURE – vexatious litigant – where mother seeks an order the father be declared a vexatious litigant and prevented from filing further applications – consideration of s 102QB of the Family Law Act 1975 (Cth) – where father has not filed frequent applications – no order made. |
| Family Law Act 1975 (Cth) s 60B, 60CA, 60CC, 61DA, 65DAA, 102Q, 102QB |
| In the Marriage of Bennett (1991) FLC 92-191 |
| APPLICANT: | Mr Malak |
| RESPONDENT: | Ms Mairie |
| INDEPENDENT CHILDREN’S LAWYER: | Victoria Legal Aid |
| FILE NUMBER: | MLC | 2355 | of | 2010 |
| DATE DELIVERED: | 21 July 2015 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Berman J |
| HEARING DATE: | 28-29 May 2015 and 2 June 2015 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Litigant In Person |
| COUNSEL FOR THE RESPONDENT: | Litigant In Person |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Harris |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Victoria Legal Aid |
Orders
That the mother have sole parental responsibility for the children C born … 2000, E and D both born … 2004 (“the children”).
That the children live with the mother.
That the father spend no time with the children.
That the father not be permitted to communicate with the children by any means.
That a copy of these orders be made available to the children’s school and/or other services including the Department of Health and Human Services at the election of the mother.
The proceedings be removed from the active pending list of cases.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Malak & Mairie 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 ADELAIDE |
FILE NUMBER: MLC 2355 of 2010
| Mr Malak |
Applicant
And
| Ms Mairie |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
By Initiating Application filed 4 June 2014, Mr Malak (“the father”) seeks parenting orders in respect of C, born in 2000, D and E, both born in 2004.
By Response filed 30 June 2014, Ms Mairie (“the mother”) seeks orders as follows:-
(1)That the Initiating Application of the father be dismissed.
(2)That the father pay the mother’s costs.
(3)That the father be declared vexatious and not permitted to commence further proceedings in the Family Court without prior permission.
A summary of the orders sought by the father is as follows:-
(1)That the father be at liberty to communicate by telephone with C, D and E each Saturday between the hours of 9.00 am to 10.30 am and the mother to do all things necessary to facilitate the children receiving those calls and to keep the father advised of a telephone number on which he can telephone the children.
(2)That the mother not interfere or place any time restrictions or any other conditions on the children receiving telephone calls.
(3)That the father be at liberty to send letters, cards and small gifts to the children and for the mother to pass the letters, cards and gifts to the children unopened.
(4)That the mother keep the father advised in writing of the residential address of the children, school or schools at which they attend and to advise of any significant illness or accident suffered by the children.
(5)That the children’s paternal grandmother and paternal aunt and their cousins be at liberty to communicate with C, D and E by email, telephone and through social media internet sites and that the mother keep the paternal aunt advised of the children’s email address and phone numbers on which they can be contacted.
(6)That the mother be restrained from imposing any restrictions on the children contacting any of the family members.
(7)That the mother be declared a vexatious litigant and prohibited from commencing any further applications without leave of the Court.
The opposition of the mother to the orders sought by the father was supported by the Independent Children’s Lawyer (“ICL”).
The trial commenced before me on 28 May 2015 with the evidence concluding on 29 May 2015. I had the advantage of final submissions from the mother and the ICL.
The father attended the proceedings by way of video link from the audio visual facility in a correctional facility in the State of New South Wales. The father was self-represented and in the complex circumstances of this case I considered it would be appropriate for the father to have the opportunity to hear the submissions of the mother, but in particular those by counsel representing the ICL and time was thereafter allowed for the father to provide his submissions in writing. Those submissions were received on 7 July 2015 pursuant to my order of 2 June 2015. The receipt of the father’s written submissions concluded the proceedings with my judgment thereafter being reserved.
It should be noted that the Court and the parties were assisted by the highly competent involvement of the ICL via her counsel.
The father relied upon the following documents:-
(1)Initiating Application filed 4 June 2014.
(2)Trial Affidavit of father filed 4 June 2014.
(3)Further Affidavit filed 12 May 2015.
(4)Summary of Argument document filed 20 May 2015 together with a List of Authorities.
(5)Father’s written submissions filed 7 July 2015.
The mother relied upon the following documents:-
(1)Response filed 30 June 2014.
(2)Affidavit of mother filed 30 June 2014.
(3)Trial Affidavit of mother filed 11 May 2015.
(4)Case Outline document filed 15 May 2015.
The ICL relied upon the following documents:-
(1)Family Report prepared by Family Consultant U dated 18 March 2015.
(2)Outline of Case document dated 15 May 2015 and tendered at trial.
Consistent with the recommendations of the Family Consultant, the ICL sought the following orders:-
(1)That the mother have sole parental responsibility for the children.
(2)The children live with the mother.
(3)That the father spend no time with the children.
(4)That the father not be permitted to communicate with the children by any means.
(5)That the father be restrained by injunction from contacting the children by any means.
(6)That the father be restrained by injunction from using family or friends to solicit information about the children.
(7)That a copy of these orders be made available to the children’s school and to other services including the Department of Health and Human Services at the mother’s discretion.
At the commencement of the proceedings I advised the parties and counsel that I bring to account the provisions of s 69ZN of the Family Law Act 1975 (Cth) (“the Act”) and I took the opportunity to explain to them but in particular the self-represented parties the importance of the application of the principles for the conduct of child related proceedings. In determining and giving effect to the principles of s 69ZN, I reminded the parties of the general duties and powers set out in s 69ZQ and my ability to make determinations, findings and orders at any stage of the proceedings pursuant to s 69ZR.
I also raised with the parties the issue as to whether the provisions of s 69ZT should be dispensed with namely, that the Evidence Act 1995 (Cth) (“the Evidence Act”) should be applied to determine questions of admissibility as to some or all of the evidence.
Notwithstanding that, this is a case where the mother considers that what might appear to be benign orders sought by the father would nonetheless place the children at the most extreme risk. Because of the findings that have been made in this and other courts in circumstances where there are critical admissions by the father, neither of the parties including the ICL sought that the evidence be tested by reference to the Evidence Act, nor did I consider that the circumstances of the case were exceptional notwithstanding the complexity, its long and involved history and the attendant unusual aspect of the proceedings.
Neither of the parties nor the ICL asked for any determination in relation to objections to affidavit material pursuant to Rule 15.13 of the Family Law Rules 2004 (Cth) which if applied would enable the Court to strike out material in an affidavit if the material:-
(a)is inadmissible, unnecessary, irrelevant, unnecessarily long, scandalous or argumentative; or
(b)sets out the opinion of a person who is not qualified to give it.
It must be remembered that notwithstanding that the Evidence Act does not apply, the provisions of s 69ZT(2) provide:-
The court may give such weight (if any) as it thinks fit to evidence admitted as a consequence of a provision of the Evidence Act 1995 not applying because of subsection (1).
The affidavit material of the father contains opinion and submission. Ultimately I determined that the entirety of the matters presented by the father would be before me and their use and value would centre upon the weight that they are to be given.
Whilst the mother also provides opinion and submission, her affidavit material is extremely truncated. Accordingly, her affidavit presents little difficulty.
CHRONOLOGY
1994 Father marries but separates in February 1996
1997 Parties commence cohabitation
2000 Date of birth of C (15 years four months)
2004 Date of birth of D and E (11 years two months)
2005Mother relocates with children to Melbourne without father’s consent
24.5.2005C is taken by father from mother’s care but is returned to her following a recovery order
April/May 2006 Proceedings before Murray J
26.6.2006Judgment is pronounced with orders that provided for the children to live with the mother and for E and D to have infrequent supervised time with the father but with C to spend no time with him.
Oct 2006Notwithstanding that the allegations formed part of the complex evidence before Murray J, mother repeats allegations that C has been abused by the father.
Dec 2006The mother files an Initiating Application seeking to discharge Murray J’s orders
2007-2008Father spends supervised time with the boys at Y Contact Service. A total of six supervised visits take place.
2007-2010Father is in a relationship with Ms P
July 2008Father and Ms P are married
2008Date of birth of K
March 2008Orders made by Brown J that D and E live with the mother who shall have sole parental responsibility. Father’s application to spend time with C dismissed and father is to spend supervised time with D and E at a community support centre
5.5.2009Father appeals orders of Brown J and challenges her Honour’s refusal to make orders that there be any time with C
7.9.2009Father’s appeal is dismissed
7.4.2011Cronin J makes orders setting the matter down for final hearing over three days in September 2011
May 2011Father is interviewed by Police, arrested and charged. Father remanded in custody for the duration of his criminal proceedings
24.11.2011Cronin J varies final parenting orders and suspends all time between the father and the children expressing a concern that the father may interrogate the children. Father submits that he intends to plead not guilty
Feb 2012Father pleads guilty on arraignment
16.8.2012Mother files Initiating Application. Father does not file a Response
Jan 2013Father is sentenced
7.2.2013Cronin J discharges earlier orders with the outcome being that the children live with the mother who shall have sole parental responsibility. Father is restrained from contacting the children until further order and dismisses the mother’s Initiating Application. Cronin J declines to make an order under s 118 thereby enabling the father to bring a fresh application
4.6.2014Father files Initiating Application and the current proceedings are commenced
PRELIMINARY ISSUES
The assessment undertaken by the Family Consultant did not include any interview with the children or any observed interaction between the children and the mother. The father has not had any physical contact with the children since September 2010 and has not spoken to them since May 2011. It is likely that the children with the possible exception of C are not aware of his imprisonment, the sentence and perhaps more importantly, the particulars of his offending.
At the commencement of the proceedings, the father sought an order that the proceedings be adjourned to enable an assessment to be undertaken which would involve the children and to thereby ascertain their views. The father argues as follows:-
[14]Under subsection 60B(2) of the Act, the Court will be asked to take into consideration that the children have a right to know and be cared for by both parents. Also that the children have a right to spend time on a regular basis with and communicate on a regular basis with both their parents.
[15]The orders that I am seeking take these two factors into consideration. It is in the children’s best interests for them to have such contact for the reasons that I have provided above.
[16]Under subsection 60CC(2) the additional factors that the Court must consider is any views expressed by the children.
[17]It is unfortunate that the Family Consultant did not interview the children to ascertain their views. Instead she relied upon the mother’s views, which previous Court hearings has proven that the mother has been less than truthful.
[18]The last time the children’s views were taken into consideration was at the Family Assessment in 2008. [Mr R] accurately recorded the children’s wishes and views. He also accurately recorded the children’s reaction to spending time with me.
[19]Mr [R] also recorded the strong bond they have with me and noted that [C] also retains a strong bond despite the long absence in her life.
[20]The children are now 11 and 15 years of age and it is submitted that the court should greater weight to their views. The children are at an age where they can separate their emotional attachments from their mother and provide their own views and wishes.
The father submitted that the assessment by the Family Consultant would be flawed if the children were not interviewed. At paragraph 95 the Family Consultant records the following:-
The father considers it imperative that the children be interviewed, that their views be sought, but he acknowledged that if the children’s views do not align with his beliefs he will still seek further opportunities for contact. It is considered that the father’s continued furrowing into the children’s world is a destabilising mechanism and another method of his reasserting control over the mother. The father reports his “…great relationship with the children,” but he does not comprehend that under the current circumstances there needs to be an adult interpretation of the children’s needs and his assessment of relationships are considered here to be at best doubtful and self-serving.
Notwithstanding that there was not an order requiring children to be the subject of involvement in the assessment, the further remarks of the Family Consultant are apposite:-
It is to be noted that any benefit of interviewing the children in this matter, however marginal and fraught with difficulties, is obviated by the father’s admission that he will, regardless, persist in his endeavours to have contact with the children.
The application for adjournment, but in particular the question of whether the children should be included in any further assessment was opposed by the mother and the ICL. After hearing argument and following ex tempore reasons, I refused the father’s application.
Taking into account the complex court history, consideration was given as to whether the Initiating Application of the father should be dismissed.
It is not controversial that a court should give careful consideration to the circumstances of a case before varying or discharging a final parenting order. That issue, or at least its proper consideration, is particularly relevant when viewed against the litigation history from 2006 to February 2013.
The power to vary or discharge a final parenting order is not to be lightly exercised and the test must focus on the extent, if any, of a new or changed circumstance since the making of the previous order. The onus to satisfy the court that there is a need to interfere with a final parenting order rests upon the applicant. It must be in the best interest of the child that any final order be the subject of variation.
The “Rule” emanates from the remarks of Evatt CJ in Rice & Asplund (1979) FLC 90-725 at page 78,905-06:-
The principles which, in my view, should apply in such cases that the court should have regard to any earlier order and to the reasons for and the materials on which that order is based. It should not lightly entertain an application to reverse an earlier custody order. To do so would be to invite endless litigation for change…is an ever present factor in human affairs. Therefore, the court would need to be satisfied by the applicant that…there is some changed circumstance which will justify such a serious step, some new factor arising or, at any rate, some factor which was not disclosed at the previous hearing which would have been material…
The focus therefore is clearly to weigh up and balance the potential for future litigation to impact adversely on a subject child. In summary, the question should be asked whether to reopen the litigation would in all the circumstances of the case be in the best interests of the child.
In SPS & PLS (2008) FLC 93-363 Warnick J said at [1]:-
The “rule” in the Marriage of Rice & Asplund…that, where there has been a final order in respect of parenting issues, before the court embarks on a rehearing of those issues, the applicant must establish a significant change in circumstance – is certainly useful, if not essential. But it is not the primary principle in applications for parenting orders. Nor is its utility or weight uniform across cases in which it might be applied. In particular, those attributes vary, according to whether the rule is applied at the outset of or at the end of the hearing…
His Honour further commented that:-
[58]Another end served by the rule is that it avoids one judge substituting his or her opinion of what is in the best interests of a child for that of another judge, though both opinions are based on the same or similar facts. This “evil” is avoided by a requirement that the previous order should not be altered unless there has been a change of circumstances sufficient to justify that result.
In Marsden & Winch [2009] FamCAFC 152 the Full Court attempted to summarise the rule as follows:-
(1)The past circumstances, including the reasons for the decision and the evidence upon which it is based.
(2)Whether there is a likelihood of orders being varied in a significant way, as a result of a new hearing.
(3)If there is such a likelihood, the nature of the likely changes must be weighed against the potential detriment to the child or children caused by the litigation itself. Thus, for example, small changes may not have sufficient benefit to compensate for the disruption caused by significant re-litigation.
Whilst it is difficult to ascertain what significant or substantial change in the circumstances of the children has eventuated, I am however cognisant of the outcome of the criminal proceedings and with the consent of the parties but in particular the father, the sentencing remarks of the judge of the District Court of New South Wales Criminal Jurisdiction dated 25 January 2013 are before the Court as “Exhibit 1”.
In the circumstances of this case, I have determined that consideration of the Rice & Asplund issue should properly be made after the evidence has been considered. Accordingly, the father has been given the opportunity to ventilate his case.
BACKGROUND
A detailed history is to be found in the Reasons for Judgment delivered on 7 September 2010 by the Full Court drawing upon the history as set out in the Reasons for Judgment delivered on 26 June 2006 by Murray J and the further Reasons for Judgment delivered on 8 April 2009 by Brown J.
The parties commenced their relationship in 1997. Whilst living together in a de facto relationship the children were conceived by using fertility treatment.
The early history was complicated by an allegation that the mother had misrepresented her relationship status to Centrelink following the birth of C. The parties apparently provided a letter from the paternal grandmother that the parties were at all material times residing together. Whilst not directly relevant to the current proceedings, the Centrelink investigation was the subject of consideration by Murray J who found at paragraph [31]:-
The letter is not before me in evidence. There has been a great deal of evidence about it. It goes to the question of credit as much as to the question of sexual abuse. The incident does not credit to either party nor to the [the paternal grandmother].
Whilst the mother was the recipient of the Centrelink overpayment, Murray J found that the father was aware of her actions.
In May 2005 the mother alleged that C had disclosed that the father was “touching her ‘on the bagina’ being the way she refers to her vagina”. The father denied the allegations. The mother alleged that it was the reason that the parties separated. As a precursor to what was ultimately an unfavourable finding by Murray J in respect of the mother’s credit, her Honour did not accept the extent to which the mother allegedly relied upon the alleged disclosure and found that the method and manner by which the mother separated from the father taking furniture, a substantial sum from the bank account of the parties and the children, was without notification to him and premeditated.
Whilst it appears that the father ultimately acquiesced to the mother and the children residing in Melbourne, the parties could not reach agreement as to the time that the children would spend with the father in Adelaide. The father threatened to institute Court proceedings. The mother threatened to inform the Court that the father viewed “kiddie porn”.
Murray J found that the father had a predilection to pornography, that it was frequently watched both in the presence of the mother but also with friends. Her Honour drew a proper distinction between adult pornography and images that depicted and involved children. Critically to her Honour’s determination, she found that there was no evidence or basis for the allegation that the father indulged in viewing child pornography as opposed to pornography involving adults. Moreover, her Honour found that there was a good relationship between the father and C such that when he attended to see the children, he took C without the consent of the mother back to Adelaide. C engaged with the father “enthusiastically”.
The mother sought and obtained a recovery order and on 27 May 2005 the child was delivered up to the Federal Police who then returned the child to the mother’s care. Almost immediately upon the child being restored to her care, the mother then took the child for an examination to ascertain whether there had been any physical or sexual abuse. Her Honour found that there was no evidence and at [52] was critical of the mother in the following terms:-
The mother’s allegation of a fungal infection emanating from the father is just one of a number of distortions of truth and exaggerations propounded by the mother and her mother throughout their evidence.
The mother further alleged that the father had physically struck the child across the head and consistent with her earlier observations her Honour found that the incident did not occur. The mother was not believed in respect of the allegations of physical or sexual abuse at the hands of the father.
Further allegations were made by the mother and ultimately she was required to return the children to South Australia and did so in June 2005. Brown J observed that the parties “were locked in acrimonious litigation in Adelaide”. The mother wished to relocate the children to Melbourne and this was opposed by the father. Allegations of abuse were prolific but her Honour had concerns as to the veracity of the C’s disclosures but accepted that by October 2005 “C had developed a very genuine and real fear of her father”. Her Honour considered that far from there being any substance to the allegations, C’s presentation was as a direct result of the actions and interference by the mother and the maternal grandmother.
At paragraph 147 Murray J observed that she was not able to make a finding that the father had sexually abused the child and found specifically that he had not “vaginally or anally penetrated the child or masturbated in her presence nor placed his penis in her mouth”. Her Honour did find that “on the balance of probabilities” there was “an unacceptable risk of sexual abuse of [C] by the father e.g. inappropriate sexual touching of the child”. Her Honour found that this conduct did occur and arose in the context of a game played by the father and C called “torture”.
Whilst there was not a finding of unacceptable risk in respect of D and E, her Honour was clearly concerned as to the father’s predilection to viewing extreme pornography some of which involved bestiality and considered that at least initially any time spent by the father with D and E should be the subject of supervision.
The mother alleges that C continued to make further disclosures and arising from her attendance and eventual assessment at the Gatehouse Centre (“Gatehouse”), the child was interviewed and assessed by a worker on 25 occasions up to 31 July 2007.
In a report by the Gatehouse worker on 14 December 2006, it was alleged that C had disclosed oral, anal and penetrative sex perpetrated by the father over a number of years.
Brown J was clearly critical of the report of the worker and described it as “remarkable” given what appeared to be the worker’s rejection of the Reasons for Judgment of Murray J.
Her Honour’s finding was that the worker lacked objectivity, adopted a flawed process and the assessment was unreliable.
The mother filed an application in the Family Court on 22 December 2006 seeking to discharge previous orders to the intent that she would have sole parental responsibility and there would be no time spent between the father and the children.
Brown J was highly critical of the mother’s motivation in bringing the application and in her inappropriate reliance upon the Gatehouse report. Her Honour found that :
provisions were made in the orders if the abuse was established at a later date, an objectively absurd proposition. I have no doubt that she believed she could stop the father seeing [D] and [E] if she could prove he had abused [C] and was determined to achieve that aim.
In early 2007, the father met Ms P who at that time had four children from a previous relationship namely V (15), A (13), L (10) and B (eight).
The mother persisted in her campaign to establish that the father had sexually abused C and therefore presented a risk to D and E. In March 2007 the father filed his response to the mother’s application and sought that she be declared a vexatious litigant.
Ultimately he was successful in obtaining supervised contact to take place with D and E at Y Centre.
The observations of the father’s supervised contact at Y Centre are important considerations to him in the current proceedings. He seeks to highlight what he considers were positive observations of the relationship with D and E. There is some support for the father’s contention of appropriate interaction with D and E in the remarks of Brown J that “the positive interaction between father and sons is noteworthy”. Her Honour further observed that the report described “a comfortable and happy interaction between the father and the boys.”
Disturbingly, in November 2007 Ms P’s daughter L alleged that she and her sister A had been sexually abused by the father. A denied the allegations and L conceded that perhaps it had been a dream. L’s mother was sceptical but because of the serious nature of any allegation involving the sexual abuse of a child, she considered that it needed to be investigated. Ultimately it was found that there was no substance in the allegations made by L.
The competing applications for final parenting orders were listed for trial on 23 January 2008. The parties however reached a consent position that the father would spend time with D and E on one occasion every two months on dates and times to be agreed in consultation with the Y Children’s Contact Service.
There were a number of supervised contact sessions and it is a reasonable summary that the interaction between the father and D and E was observed to be positive with no unusual features in respect of the children’s presentation. If anything there was observed to be some depth to the relationship.
In mid-2008 Ms P gave birth to a daughter K who is the biological child of the father.
Further allegations were made that during unsupervised time on 19 July 2008, the father “took a photo of [D’s] penis when he was sitting on the toilet at McDonald’s after soiling his pants”.
After significant investigation involving Police and Children’s Protection Services, Brown J found that the father had not taken a photograph of either child’s penis nor had he dealt with either of them sexually inappropriately. At [139] her Honour found:-
I have no hesitation in finding this is a malicious allegation.
Presumably out of anger and frustration during an unsupervised time with D and E on 20 September 2008, the father interrogated the children involving questions as to whether they had been physically struck by their grandmother, mother or other persons in the mother’s home. The conversation with the children was recorded by the father.
The father and Ms P were married in late 2008. They took up residence in Town B, New South Wales.
Further allegations of sexual abuse were the subject of investigation by New South Wales Police involving the father and the child. This caused the proceedings before Brown J in December 2008 to be adjourned and ultimately resumed in January 2009 and continued in March 2009.
The effect of her Honour’s orders are set out conveniently in [198] and [199]:-
[198]Balancing all the evidence I am not satisfied that [C’s] best interests will be served by orders which provide for her to see her father, even in a supervised environment. The court accepts that this means she will not have a meaningful relationship with her father, at least until she is old enough to decide herself whether she wants to seek him out and re-establish contact. However, in my judgment, the potential risk to her emotional development and her relationship with her mother outweighs the potential benefits, particularly as the court could not be confident that supervised contact could move to unsupervised time. [C] may be envious of the presents her brother receives (although I am satisfied the father provided presents for her, too, on occasions) and even envious of their relationship with her father, but that is not a solid foundation on which to build a relationship between her and him, given her life with the mother since her parents separation and her primary attachment with her mother.
[199]I am satisfied that the father’s time with [D] and [E] no longer needs to be supervised and they should spend longer periods with him, moving to overnight, and in due course, holiday time. I am satisfied that orders broadly as proposed by the ICL are likely to be in their best interests, although orders will provide for slightly longer periods than the ICL envisaged. In making that finding I do not ignore the mother’s opposition to any extension of time and the potential for her to work to undermine it. However, the best interests of [D] and [E] demand that they are able to build on the relationship they now have with their father.
The father appealed her Honour’s orders and considered that by making no order which would allow C to spend time with the father, her Honour had fallen into error. It was the father’s contention that C was not at risk of sexual or physical abuse in his care and that the mother had effectively alienated the child by the promotion of demonstrably false allegations of sexual and physical abuse.
On 7 December 2010 the Full Court dismissed the father’s appeal.
Further difficulties arose and it is reported that in April 2010 the father contacted C by mail and made some further enquiries at the child’s school. In addition, further allegations were made by L that the father had “been taking photographs of her vagina” whilst she was sleeping.
In response to the Initiating Application to the mother, the father filed a Response on 11 January 2011 seeking a discharge of the operative orders made on 8 April 2009 and the following orders:-
(3)That the children, [C], [E] and [D,] live with the father he to have sole parental responsibility for them.
(4) That the mother’s time with the children [C], [E] and [D] be reserved.
It is a straightforward observation that the orders sought by the father in his Response were predicated on the basis that he did not pose a risk to the children.
On Thursday 12 May 2011, the father was interviewed by the Police, arrested and charged with numerous offences including aggravated sexual intercourse with a person under 10 years of age namely, the father’s two year old daughter and a series of offences involving Ms P’s children including the commission of an act of indecency with a person under 16 years, indecent assault of a child under 16 years and using a child under 14 years to make child abuse material. In addition, it was also alleged that the father produced and possessed child abuse material and filmed a private act for the purpose of sexual gratification.
The father initially professed his innocence and the following is recorded by Cronin J in his reasons delivered 24 November 2011:-
[6]The father is currently in prison on remand awaiting a criminal trial for sexually assaulting the three year old child. He has told this Court that he intends to plead not guilty. Pending the outcome of his trial, he wants to continue his relationship with [D] and [E] by weekly telephone communication. As will be apparent, that telephone communication was supposed to have occurred pursuant to previous orders of this Court so to an extent, his current imprisonment becomes the new issue. Is it just a change of location? or something more serious?
Significantly, the presentation of the father was to deny his guilt and to assert that without maintaining a relationship by the ability to communicate with the children, they would be irrevocably alienated from him.
In February 2012, the father entered pleas of guilty at the arraignment hearing and in January 2013, the father was sentenced to a term of imprisonment until 2029 with a non-parole period until May 2025. The father appealed his sentence. His appeal was dismissed in December 2014.
As discussed, the present proceedings were commenced by the Initiating Application of the father filed 4 June 2014 seeking to be able to communicate by telephone with C, D and E on a regular basis and that the mother keep him advised of the residential address of the children, their current school or schools and to be advised of any significant illness or accident suffered by the children.
SENTENCING REMARKS
The father was arrested in May 2011 and has been held in custody since that date.
It is important to provide some context to the current proceedings by reference to the circumstance of the father’s offending, sentence and incarceration.
There is no suggestion by the father of any error or misstatement in the sentencing remarks of his Honour Judge Bennett. The circumstances of the father’s offending underpin the concerns of the mother in her opposition of the orders sought by the father, but also were important considerations germane to the evidence given by the family consultant.
It appears that following a statement from Ms P’s daughter L on 22 October 2010, the child disclosed that on 1 October 2010 the father entered her bedroom, lifted up the bedclothes, pulled down her clothing and took a photograph of her vagina using either a camera or a mobile phone.
Following the disclosure, a search warrant was executed on the father’s home that he shared with Ms P and her children and a digital camera, computer hard-drive and laptop were seized.
Count 1 alleges that the offender:-
On 22 September 2010 at [Town B] in the State of New South Wales did have sexual intercourse with [K] who was at the time under the age of 10 years namely two years and under the authority of JAM.
K is the two year old daughter of the father and Ms P. It is alleged that the conduct for the offense was cunnilingus.
Count 2 alleges that:-
On 22 September 2010 at [Town B] in the State of New South Wales the offender used [K] as a child then under the age of 14 years namely two years to make child abuse material.
His Honour sets out his observations of the digital record made by the father and involving K as follows:-
[Paragraph of Sentencing Remarks omitted for publication purposes]
The summary of facts does not include a feature of the child’s response to the offender. There was no sign of resistance from her. She was completely compliant and there did not appear to be any instruction given to her. She was responsive to the offender in her position on the bed as he came to her in the first sequence and as he lifted her on top of him and continued with her face proximate to his penis, which he masturbated to the point of ejaculation. This I infer from his use of the towel to wipe the penis. When he finished with the child she sat on the bed and put about her a robe partially covering her young body as the offender kissed her lips, to which she responded. It is my perception that she contemporaneously kissed him in return. Her responsive presentation was as a mature woman in an act of consensual lovemaking with further affection after the coupling. She was as if an adult as she placed the robe about her and responded to his kiss.
To see a child of such tender years behave so with this man leaves me with no conclusion other than her relationship with her father had been sexualised to the point where she was a responsive participant in this sexual encounter. It is of course not possible how the offender groomed her to this point, or over what time, or the number of occasions that might have preceded this. I am satisfied beyond any doubt however that this was not an aberrant or isolated event with this child.
Count 3 alleges:-
Between the first day of July 2010 and 22 October 2010 at [Town B] in the State of New South Wales the offender did for the purpose of enabling another person to obtain sexual arousal or sexual gratification to film [L] a child then under the age of 16 years namely 11 years, engaged in a private act without the consent of [L] knowing that she did not consent to being filmed for that purpose.
The short summary of the particulars of the offending is that following the examination of the hard drive of the computer, a video was revealed of L, B and M naked and showering in the bathroom with the vision having been captured by a camera secreted in the room.
Counts 4 and 5 involve the use of a child to make child abuse material and an act of indecent assault against a child namely K.
The particulars of these offenses involve the vision of K in the bath with her vagina depicted and exposed directly to the camera with the father’s hand parting her labia.
Count 6 and 7 involve similar charges but this time in respect of the child L. It is to be remembered that L alleged the father had entered her bedroom, lifted the covers and had taken a photograph of her genitals. The father denied the allegation. There is an unfortunate coincidence between this allegation that occurred on 1 October 2010 and the earlier allegation of L where she alleged a similar incident but was not believed.
Following an examination of a laptop computer an image of L’s vagina was revealed and it was this complaint by L which ultimately brought the father to the notice of the Police.
There were further charges relating to 14 images of naked female children depicting their genitalia that were found upon examination of the computer hard drive seized by the Police. It appears that the images were downloaded by the father accessing a site displaying child abuse material and child pornography.
It is recorded in his Honour’s sentencing remarks that:-
On 22 October 2010, the offender took part in an interview regarding the complaint made by [L]. He denied the misconduct claiming fabrication so that she might be permitted to live with her father, and concoction by her father and the offender’s former wife to assist her in Family Court proceedings in respect of his other children living in Victoria.
As part of the information obtained from the computer hard drive, there were 2801 child abuse pictures and 36 child abuse videos.
One of the videos involves the step-daughter of the father, M, naked and entering the shower inside the Town B home. There were others similar to this vision.
Ten of the images were categorised by his Honour at a severity of ten on the COPINE scale in that they depicted a naked female aged 12 to 13 years old “with her vagina and breast exposed, blindfolded, ankles bound to thighs, hands bound and chained to a wall”.
There were other images involving young children being tortured with rope around their neck, barbwire around their waist, pegs attached to nipples with weights in order to place tension on the nipples and images of children of the age between eight and 12 years old with their faces covered with a bag and their breasts tied.
Other images depict a female aged six to eight years old with her mouth bound, hands bound behind her back tied at the knees and in a standing position. Visible are scratches and cuts across her abdomen.
Further images are of penile penetration of children six to eight years of age.
The father attempted to explain his behaviour. It was said on his behalf:-
By the time of the alleged offending he was distressed; his mood was generally down and depressed because he could not see his children; his sleep was generally poor; he had difficulty getting to sleep, and this had been the case since 2005; his appetite was inadequate; his concentration was fair; his motivation was generally diminished; he had lost interest in doing his job; his self-esteem was diminished, he was always doubting himself about what was going to happen to him; he thought his decision making was reasonable, but he had lost his ability to enjoy things; he said he was close to his daughter and it was hard even to enjoy himself with her; on a few occasions he had some suicidal thoughts.
In relation to the two year old child K it was said on his behalf:-
He stated he felt shocked about the offending; he could not recall the events with [K]; when he was told about it he expressed disgust; he accepted he had a problem sexually, in particular as a consequence of the event with his daughter; he stated he wanted to address this and he was willing to attend a sex offenders rehabilitation program.
By way of findings generally, his Honour said:-
The conduct of this offender is properly described as abhorrent. The explanations he offers by way of the psychiatrist and his written document, which he did not have the courage to repeat in the witness box, does not provide any premise by which to conclude that he committed these crimes because of the influence of external stressors rendering him vulnerable to temptation. I do not accept those propositions.
The youngest victim was two, his daughter, upon whom he took his pleasure for his sexual gratification by way of sexual intercourse in the form of cunnilingus.
With regard to the child abuse material, he not only produced it, he was in possession of child abuse material depicting unfortunate small children in terrible circumstances. Even if that was all that the Court had to deal with here, and he was merely in possession of that material, individuals such as him provide the market whereby criminals across the world take and abuse and exploit young children for the sexual pleasure or gratification of others who are prepared to contribute whatever money if they might for that purpose. These were real children depicted in terrible circumstances being victimised.
It is an important consideration that as recently as the father’s Response filed 11 January 2011 he was seeking the primary care of C, D and E.
THE EVIDENCE
The Father
The father relies on his affidavit filed 12 May 2015. It is a reasonable assessment of the document that it is more by way of submission than evidence. That observation is not intended to be a criticism of the father. Indeed it must be said that given the difficult circumstances of this case, the nature and history of the relationship between the parties, the father conducted himself in a civil and appropriate manner. It could not be said that his trial material was poorly presented or unhelpful.
To the extent that the matters canvassed in his trial affidavit are almost entirely historical is a reflection of the reality of the father’s current position namely, that he has not seen C for seven years and D and E for five years. In 2011 the father was arrested and he has remained incarcerated since his arrest. Subject to any vagaries of the New South Wales prison system, it is unlikely that the father will be released before 2025, or at the latest 2029.
The father knows nothing of the personal circumstances of the children and their mother. Other than the resolution of the father’s criminal proceedings, the only matters upon which the father could comment upon or put before the Court are his own personal circumstances. To a large degree they are constrained and defined by the rigors of his imprisonment.
Not surprisingly, the father focusses on the matters that he considers are positives.
He refers to his supervised time with the children in 2007 and 2008 initially under the supervision of Y Centre. He considers that his time with D and E was positive and demonstrably so. He refers to the report from the Contact Centre and the subsequent report of Mr R, the family consultant.
He says that both during the supervised periods but then when the need for supervision was removed and he spent unsupervised time with the children, they had an enjoyable time together and D and E were always happy and excited to see him and saddened when their time together ended.
That positive relationship continued through to September 2010.
The father relies upon a List of Authorities presented to the Court at the commencement of the proceedings. The decisions are well known and are not controversial.
The summary of the father’s position to the Court is summarised by his reference to the following extract from the decision of Partington & Cade (No 2) (2009) 42 Fam LR 401:-
Litigation about children’s welfare is not focussed on determining rights and obligations arising from past events, but rather is directed to finding the arrangements that will advance their interests in the future.
…there is no reason that in looking to the future, only “probabilities”…and not “possibilities” can be taken into account, though clearly the degree of likelihood may affect the weight given to any prediction, and the assessment of likelihood must be a reasoned one.
The father views his current incarceration as a positive feature in that unlike other cases, the Court does not need to be concerned that the children’s lives will be adversely disrupted. The father argues that the children will continue to live with their mother, they will continue to attend their school and see their friends.
The children will not be at any physical risk of harm because it is not intended that the children could or would spend any time with the father.
To the extent that the children would benefit by communicating with the father is supported by the history of a close relationship with D and E.
It is important to the father’s case that he highlights the cessation of his relationship with the children, but in particular D and E, as a result of the alienating behaviour of the mother, his successful rebuilding of the relationship with the children and that his ability to communicate with them would continue to advance their development.
The father says at paragraph 33 of his trial affidavit that:-
This will give the children the opportunity to share the events in their daily lives. It will provide them with an opportunity to tell me about their achievements and share any concerns or worries they may have. I also want to share my experience with them and offer advice and guidance into their adult lives.
The father confronts the obvious difficulty, namely that of a finding that he presents an unacceptable risk at least to the child C. He relies upon the findings of Murray and Brown JJ and interprets their separate decisions as support for the contention that his denials of sexual abuse or inappropriate conduct with C, D and E are reliable.
He opines that even if it was appropriate that there be a finding of unacceptable risk, that should not stop the Court from exploring options into the future based upon the proper needs and interests of the children.
The father’s clear position is that he has not abused C, D and E and the implication is that in some way his conduct involving other children should be quarantined from any consideration.
Not surprisingly, the father relies heavily on the Mr R report and the purportedly positive observations of his time with D and E at the Contact Centre. It seems however that the father’s assessment is superficial and ignores the very real possibility that at the time he was engaging with D and E, he was involved in the most serious and horrific abuse of Ms P’s children and K together with the involvement, viewing and accessing of child pornography. The focus and genre of the materials preferred by the father involved children depicted as being tortured.
It is not suggested that the father raised these matters before any of the judicial officers who have been involved in this litigation, in particular Cronin J in 2011 when he submitted to the Court that notwithstanding he was in prison on remand awaiting his criminal trial for sexually assaulting K, he intended to plead not guilty.
It would seem implicit in the father’s position that the Court should ignore his criminal conduct, if for no other reason than the very nature of his incarceration removes any risk of sexual abuse “occurring as a matter of practical reality”. Put simply, the father seeks phone contact and that he be permitted to send letters, cards and gifts. He considers his orders as benign and have the advantage of promoting and maintaining a meaningful relationship with his children.
As is the focus of the evidence of the family consultant, whilst it is axiomatic that while the father remains in prison he poses no physical risk to the children, it is the risk of psychological harm that looms large.
The father is highly critical of the methodology, approach and report of the family consultant. The father says at paragraph 74:-
74.My position on protective parenting is provided at paragraph 43 of the Family Report has been taken out of context. My position on protective parenting is that the children should not be completely shielded from a parent unless there is no other alternative to ensure the children’s safety. It goes without saying, the decision regarding protective parenting is a complicated assessment which is best left to professionals and ultimately left to the Court to decide. I believe the point I was trying to make is that the children’s views should be part of this assessment.
The father considers that the family consultant “conducted the Family Assessment through a lens of hostility given the nature of my criminal offences” (sic).
It is still the father’s principal contention that C, D and E be interviewed for the purposes of obtaining their views pursuant to s 60CC(3)(a) of the Act.
The father was cross examined by the mother and then counsel for the ICL.
The mother’s cross examination was of narrow compass and questioned the father as to the real motive for seeking photographs of the children. The implication was that they may have a sexual attraction to the father given his conduct with the child K and his viewing of child pornography, but also that in his present environment there existed the potential for photos of the children to be viewed by the husband’s associates within the prison cohort.
The father was challenged as to what sort of role model did he consider he would provide to the children. It was put to him that he would be unable to effectively mentor the children given that his time is limited to five minute phone calls. The father’s response was that he is undergoing a process of significant re-education and has completed the first year of a university degree and is now undertaking second year studies.
A continuing theme of both the cross examination of the mother but also counsel for the ICL, was to challenge the assertion of the father that he has no memory at all of his behaviour involving the child K. It is the father’s case that this was “blocked out”.
The father’s response and explanation were unconvincing. It is difficult to reconcile the planned nature of the father’s conduct with K, the staging of it, the video recording made and the subsequent interaction between the father and K as an attempt to explain or deal with the inexplicable, namely his abhorrent behaviour for which he was convicted and sentenced.
Under cross examination by counsel for the ICL, the father extended the scope of his communication with the children to include audio visual contact. The father suggests that this would show the extent of his love and understanding in circumstances where he has not seen the children for a number of years.
The father had no answer for the proposition put to him that C may understandably be horrified at the concept of having to deal with the father, but also upon her learning not just that he is in prison (it is likely that C has some knowledge) but the extent and nature of the father’s offending.
The father relied upon the report of Dr N to support the father’s position that he has the potential for rehabilitation. Dr N provided a psychiatric report to assist in the father’s sentencing hearing.
It was put to the father that in addition to the remarks of Dr N which could provide some comfort to the father, it was also his opinion that he was unable to rule out a diagnosis of paedophilia and that undoubtedly the father’s conduct was that he had engaged in paedophilic behaviour. It was Dr N’s assessment of the father that he had an underlying proclivity to sexually offend.
The father was asked about his reason for seeking to film the children engaged in bathing and showering. His response was that he had an irresistible desire to watch and film children, in particular the transition of young girls to womanhood. He admitted that he did not tell Dr N of his interest in that transition.
The father conceded that if orders were made in terms of his application which then caused distress and upset to the children, it would be in their best interests to terminate any communication.
The father could not consider what process could be put in place to repair and reinstate the children’s wellbeing if they suffered psychological trauma arising from the orders he seeks.
The father was not an impressive witness. It was clear that when challenged on an issue or topic that did not suit his strategy, he resorted to the convenience of not being able to remember the events in question.
By way of example, the following extract from the sentencing remarks was put to the father:-
On 22 October 2010 the offender took part in an interview regarding the complaint made by [L]. He denied the misconduct, claiming fabrication so that she might be permitted to live with her father, a concoction by her father and the offender’s former wife to assist her in Family Court proceedings in respect of his other children living in Victoria. He admitted the accuracy of the statement and conceded that he had made an error.
Of perhaps greater moment is the further concession by the father that in proceedings in the Federal Circuit Court in respect of the child K, he seeks school reports and other information.
The Mother
The mother relied on her trial affidavit filed 11 May 2015.
It is her position that C has always been considered a child at risk by the Court and that notwithstanding adverse remarks by Brown J and Murray J directed to the mother’s motivation and credibility, her position has now been vindicated.
The mother again raises the allegation that D alleged that the father had taken a photo of his genitals during time spent with the father and further alleged that the boys had told her that the father had slept naked with K.
The mother is not able to be reconciled to any aspect of the father’s application. She considers that the father is “a sexual deviant, controlling, dominating and not open to negotiation unless it is his way…” The mother considers that the father’s request to be able to send letters, cards and gifts has little to do with promoting a meaningful relationship with the children but, rather, to satisfy his own needs (presumably prurient) and/or his guilt. She is suspicious of his request for school reports in circumstances where previous orders had enabled this accommodation but it had not been taken up by the father.
The mother remains suspicious of the father’s motives in seeking photos and other information and is concerned that those images may be uploaded to electronic media or passed on to “like minded sexually interested inmates or friends”.
She has a different gloss on the history of relationships between the children and their father. She asserts that C was frightened of the father and in particular in respect of his outbursts and “rough games”. Whatever relationship the father had with D and E has long passed given the lack of contact over the last five years. In summary, the mother considers that these proceedings are nothing more than a further attempt by the father to “punish me and maintain control over me through the children”.
The father exercised his right to cross examine the mother. The focus of his questions was directed to his assertion that the mother had engaged in positive acts of alienation to promote the children and each of them making false allegations about the father’s conduct.
The mother admitted that when C asked her where the father was, she told the child that he was in gaol but did not provide particulars of the father’s offending. In 2012, D asked the mother why he hadn’t heard from the father and it was her explanation that the father had disappeared. The mother maintained a steadfast opposition in respect of the father and it was her evidence that she intended to protect the children against the risk that she considered the father presented.
The mother was asked to consider whether C would at some stage need to know why he was in gaol. The mother conceded that at some point she would have to provide some information but she did not consider that C was yet ready for a full explanation. She opined that she would be upset of the father’s offending in respect of K.
The mother was uncertain how the children would process the information relating to the father’s predicament. The children, in particular D and E, are fragile. The child E suffers from Asperger’s Syndrome and he has a demonstrated inability to self-regulate his emotions. He cannot express himself or identify issues clearly or carefully and whilst initially they might be curious, the long-term impact on the children should they gain a complete understanding of the father’s offending is uncertain but has the potential to be highly damaging.
THE FAMILY CONSULTANT
The evidence of the family consultant centred upon her report dated 18 March 2015.
At paragraph 39, the family consultant identifies the issues in dispute:-
·There has been extensive and contentious litigation in this matter;
·There are significant considerations of risk and patterns of behaviour leading to a review of the father’s previous behaviour in light of current knowledge;
·There are issues regarding responsible parenting and suitable role-models for the children;
·The children and most notably [C] have experienced psychological harm and emotional damage in their relationship with their father;
·The children may need psychological validation of their prior experiences with the father in continuation of protective measures;
·The father presents with significant psychological impediments to effective relationships with others and he does not consider either the nature of his offences or his lengthy incarceration as impediments to his having on-going contact with the children;
·The mother remains concerned about risk issues to the children.
The family consultant recorded that the father presented “an egocentric scenario in which he identified the children as feeling ‘…neglected and abandoned’ by the loss of their relationship with their father”.
At paragraph 44 of the report the family consultant considers that the father lacked insight into the children, their individual needs or their wishes. He was considered to be self-centred in his own desires and it was noted the peculiar presentation of the father by his lack of engagement with the children described by the family consultant as:-
His utilitarian approach [is] devoid of empathy and the father [is] neither attuned to the needs of his children, or having the capacity to hold their needs in mind as his reflex position is the promotion of his own arguments and issues.
It seems that the father’s position is predicated upon a notion that at some point he will spend physical time with the children (obviously as adults) and accordingly, it is necessary to continue a relationship. He also expressed an interest in the children visiting him in prison when he is not restricted to maximum security.
The family consultant formed the view that the father presented:-
as a rigid thinker, holding views dogmatically and tenaciously, displaying difficulty in incorporating alternative considerations. He is highly selective and repetitive with the information he reports and correspondingly he actively deflects questions that may present him with difficulties. The father cannot provide insightful or considered views but presents a well-worn sequence of ideas that he repeatedly tracks and retraces.
The father was challenged on his assessment of the genre and the extent of the pornography that he felt compelled to view. The father denied that he had viewed child pornography in 2006 (in the trial before Murray J) but did agree that there were images of “animal sex”.
Whilst the father denied any notion of sexually abusing C, he did acknowledge that their game of “torture” involving tickling of the child’s ribs and inside her thighs may not have been appropriate. He denied that this interaction with C could in any way be considered as grooming behaviour.
It is a chilling acknowledgment by the father that from November 2010 until his arrest in 2011, the child K was in a shared-care arrangement between he and K’s mother. It is recorded that the father could not identify any concern in relation to the arrangement and was dismissive of the topic. The father has appealed a decision that he have no contact with K. He is not able to understand why that should be the case.
The father was further challenged on his initial position that his offending had commenced in October 2010. Demonstrably, the father’s conduct preceded that date and whilst he was prepared to concede that perhaps July 2010 was the date of commencement, his denials were hollow considering his acknowledgement that he deleted certain images and attempted to cover his tracks.
Clearly, the focus of the family consultant was to explore the extent of the father’s insight into his behaviour not for reasons of historical relevance but to consider the risks to the children going forward if orders are made in terms of the father’s application.
The father was referred to some of the sentencing remarks of Judge Bennett and in particular the finding in respect of the extent of K’s docility and compliance. The following is reported:-
The father [identified that]… “she didn’t know what was going on.”
Asked to consider K’s emotional response to this event, the father despite repeated questioning could not in any manner connect with any sense that K would have felt or thought anything about this event. The father’s commentary was “…it was a one off event…I am hoping she was so young she will have no recollection”.
The father denied that he had groomed K explaining the kiss between father and daughter “…was not the sexual side but the affectionate side”, suggesting some awareness on his part of his capacity to discriminate the nature of his actions.
During the interview the father was asked to consider how he would describe his offending and his answer was that it was a stupid thing that he had done, he expressed no remorse or consideration for his victims and asserted that “…over 2005 I was being told I was a sexual abuser maybe this had something to do with it”.
The father considered it important that C, D and E be told of his situation but he was not able to consider the effect on the children or that they might experience severe emotional distress or psychological harm or damage.
The mother provided an overview to the family consultant of her relationship with the father which she described as the father dominating and controlling her, wanting to act out rape fantasies and seeming to provoke the mother to fight back.
At the time of the assessment, C was in year 9 and the mother considered that she:-
represented as self-loathing and so highly critical about herself she is heard frequently talking to herself abusively. She has significant behavioural issues, she is highly argumentative, clearly unhappy and reports from the mother are consistent with the notion that [C] is dealing with some issues that for her lack clarity and remain unresolved.
[C] appears unmotivated at school and her performance is poor with there being a risk that she may withdraw from school entirely.
Of concern to the mother is her understanding that in 2010 the father attempted to contact C notwithstanding court orders were in place to prevent such communication.
The twins have apparently been given little or no information in respect of their father and as has been the subject of comment, D and E have been told that their father has simply vanished.
The mother has found the process traumatic. It is reported that it is only of recent date that she has read the sentencing remarks pertaining to the father.
She is steadfastly opposed to there being any relationship at any level between the father and the children. She impressed the family consultant with her genuineness in terms of her depth of feeling.
The mother is also resistive to the children being interviewed and she views the process as having no beneficial effect but rather to promote the underlying strategy of the father namely, to disrupt, control and dominate even from prison.
The evaluation of the family consultant was that the father lacks empathy, has no remorse and seems unable to accept accountability for his actions.
The concerns of the mother appear to resonate in the following assessment contained in paragraph 83:-
It is plausible to consider that any relationship formed with the father would have a propensity for enduring conflict and disputation, but more significantly his conduct is a marker of an individual who seeks to dominate and effect control over others using any means including systematic abuse through litigation. This control is managed by manipulating information, de-personalising others, treating them as objects for his own gratification, the most reprehensive example of which being his abuse of [K], a two year [old] child, as his masturbatory object.
The explanation by the father of his offending was summarised by the family consultant in the following manner:-
It is considered here that his manner of recollection is not consistent with claims of either snapping or “…going blank”, rather his recitation about “…one and a half minutes of cunnilingus” suggests a salacious reliving through recollection, an aide memoire operating in much the same fashion as his video recordings. The [father’s] ego centrism, callousness and secretiveness, his atypical sexual interests in sexual violence, child torture and bestiality are highly suggestive of significant pathology underscored by his own lack of empathy, anti-social tendencies and secretive behaviour.
The family consultant accepted the mother’s assessment of C as a young woman and a very troubled person. She found that the child’s reported distress was “consistent with the literature of childhood trauma” and she is plagued by fragments of memory, unexplained behaviours and anguish which are not able to be easily reconciled.
The suggestion that C should be encouraged to re-enter and re-establish a relationship with the father was considered by the family consultant to be likely to re-traumatise the child and exacerbate self-destructive conduct and behaviours.
In relation to E and D, it was the opinion of the family consultant that “providing information about their father not only exposes the children to psychological risk, with regards to their developing identity, but grappling with the father’s actions would require them to rethink their relationships, notably with [C] and their mother…engagement with the father exposes vulnerable children to risk”.
In relation to the cacophony of litigation promoted by the father, the family consultant was of the view that “the father will continue to use litigation to lay some trail of contact so that ultimately he will engage with the children and the Courts may determine that continuing litigation is not in the best interests of the children”.
Finally, the family consultant considered that the father’s offending and the manner in which he obtained “sexual pleasure of the expense of small children” is such that the community needs to be protected, but significantly C, E and D remain a part of that community.
The father undertook extensive cross examination of the family consultant.
The father put to the family consultant the observations of the contact centre supervisor and Mr R that there was a positive relationship between the father and the children. The family consultant did not demur from the position that at one point in time there was a developing relationship, but that it was devoid of any capacity by the father to talk about the children in relation to their interests, activities or hobbies. Since 2008 there were significant periods when the father spent no time with the children and at present he has little or no knowledge of them at all.
The father was critical of the family consultant’s acceptance of the mother’s description of C as “self-loathing and highly critical about herself”. It was not denied that the information emanated from the mother. The family consultant was however prepared to accept the mother’s description given the history of the matter and the expected conduct and behaviours of children with a similar level of experience.
As previously discussed, the father was highly focussed on whether the children should have been the subject of the assessment. The response of the family consultant is instructive:-
I asked you very directly about what your plans were with regard to this matter and you said you were still considering options. It wasn’t clear necessarily what you were going to do but one of the options which was part of the further discussion was to continue with litigation. You and I had a very clear conversation separating events as to why you are incarcerated, issues that had concerned while you were incarcerated and how you saw the progress with relation to the children. I was very clear in trying to explore with you whether or not it was absolutely essential that the children be brought into this matter and you were helpful in the sense that you explained to me that if the children’s views did not concur with your expectations you were very likely to proceed with this matter. That’s what you told me and that’s what I put in the report.
The mother asked the family consultant whether she considered that the children would benefit from any contact with the father. Her answer is instructive:-
It is a very difficult question to answer. I am mindful of the father’s desire to have contact with his children. I am mindful of the awfulness of his predicament. There are significant concerns about how knowledge of this will impact on the children and particularly the boys at this stage or their capacity to even comprehend what is going on. There are these unresolved, unidentified issues around [C] that generate great concern and I think that if the view is that the children will be harmed by having contact with their father, or have to face issues that they would otherwise not have to face, I think my view would be that they do not have contact with the father.
Under cross examination by counsel for the ICL the family consultant conceded that in terms of the boys, given their age and state of development “it would be almost impossible for them to understand or contemplate the reasons the father was in gaol. [E] may never really comprehend the nuances of his father’s offending” and then finally the following exchange is relevant:-
Question:Did you get any indication from the comments made by the father to you during interview that he actually thought through the process of how the information of his incarceration and his offences were going to impact psychologically on each of the children.
Answer:He had not considered it at all in any way, shape or form.
Question:Is it fair to say that as someone who is purporting to be a parent, he lacks any insight whatsoever in relation to the implications of his actions upon his children.
Answer:Yes. I believe in my report I went further and talked about his lack of protectiveness as a parent.
Question:Given circumstances, could the Court have any confidence that any communication that the father would have with the children would be appropriate, given his complete lack of insight, that his communication with the children would be appropriate for the children.
Answer:The Court could not have any confidence that there would be appropriate conversation conducted with the children.
I considered that the evidence of the family consultant was skilful and an appropriate exercise of her training, qualification and experience.
I accept the accuracy of her observations of each of the parties.
PRINCIPLES RELEVANT TO PARENTING ORDERS
The parties are clearly not able to reconcile their differences. The father is steadfast in his approach namely, that historically he had a good relationship with the children and that notwithstanding the significant hiatus and disruption to that relationship it should be restored to the extent possible by his current circumstances. He seeks the ability to communicate with the children by telephone possibly extending to audio visual communication and to be able to forward to the children letters, gifts and presents without scrutiny or veto of the mother.
For her part, she considers that the father represents an unacceptable risk to the children, that the current orders provide that he spends no time with the children nor has any ability to communicate with them and the only thing that has changed is the father’s arrest, sentencing and now imprisonment until 2025.
She considers that the father’s application to be nothing more than a continuation of his desire to dominate, control and disrupt the mother’s life via the children.
When considering matters relevant to parenting orders, I am mindful of the obligation pursuant to s 60CA of the Act that in deciding whether and if so what parenting orders should be made in relation to a child, I must have regard to the best interests of the child as a paramount consideration. The best interests test is also relevant to a consideration of the application of the rule in Rice & Asplund.
The best interests of the child are met by the application of the objects of s 60B (1) and (2).
In determining what is in a child’s best interests the Court must consider the matters set out in s 60CC(2) and (3) namely, the primary considerations and the additional considerations.
The primary considerations are:-
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Mindful of the direction contained in s 60CC(2A), I have obvious regard to the allegations of family violence, sexual abuse and the need to protect the children from psychological harm as expressed by the mother. I also bring to account the circumstances surrounding the criminal offending of the father and his penalty and subsequent imprisonment. I do so not because there is any element of punishment or bias towards the father but rather, the father’s criminal conduct is at least in part a significant source of concern by the mother, and the family consultant in terms of assessing the risk to which the children might be exposed if orders are made in terms of the father’s application.
Section 65DAA(1) provides that:-
Subject to subsection (6), 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 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.
In the present case the current final order provides for the mother to have the sole parental responsibility in respect of C, D and E. The father does not seek to alter the current status of parental responsibility but rather only seeks a communication order.
In the absence of an order of equal shared parental responsibility, I am not obliged to consider the provisions of s 65DAA(5) in order to determine whether the proposals of each of the parties are reasonably practicable.
To the extent that there is evidence to support the father’s contentions, there is nothing to suggest that practically the orders the father seeks could not take place. Whilst I am certain that the mother would not wish to disclose her telephone number and/or residential address, if it was found to be in the children’s best interests, I am satisfied that with some difficulty the mechanical arrangements could be put in place to enable communication to occur and for the father to forward letters, cards and small gifts to the children.
Accordingly and having regard to the statutory obligations that are required in a parenting case, I propose to adopt the following approach namely:-
(1)Give consideration to the proposals put forward by each of the parties as they were identified and presented to the Court;
(2)Have regard to the objects expressed in s 60B(1) and underlying principles in s 60B(2) having regard to the provisions of s 60CC in order to determine in each case what is in the child’s best interests;
(3)Having regard to the primary considerations under s 60CC(2) namely the benefits to the child or children of having a meaningful relationship with both of the child’s parents and the need to protect the child or children from physical or psychological harm;
(4)Have regard to the additional considerations under s 60CC(3);
(5)The evidence adduced by each of the parties in respect to the particular considerations pursuant to s 60CC(2) and (3) are to be considered and if more weight is to be given to one or more of the matters then this must be the subject of delineation and comment;
(6)Section 61DA requires the Court to consider whether to apply the presumption of equal shared parental responsibility by having appropriate regard to the matters as set out in s 61DA (if relevant) which would rebut the presumption if a person or persons living with a child have engaged in:-
(a)abuse of the child or another child, who at the time was a member of the parent’s family (or that other person’s family); or
(b)family violence.
(7)If the presumption is rebutted then the Court can proceed to make parenting orders having regard to the provisions of the Act but based upon findings pursuant to s 60CC.
In this case, even if there had not been a concession by the father then the history of this matter, the finding of unacceptable risk in respect of C and the circumstances of the husband’s offending and in particular involving the child K would readily permit rebuttal.
CONSIDERATIONS PURSUANT TO SECTION 60CC
Section 60CC(2)(a)
The father places significant emphasis on the benefit that he says will enure to C, D and E by a resumption of a relationship with them via orders permitting communication and the giving of letters, presents and small gifts.
The application of the considerations pursuant to s 60CC is not an abstract or stand-alone consideration. Their purpose is to assist in determining what is in a child’s best interests. In this case, but not the only consideration, the relationship that currently does not exist and demonstrably has not done so for between five and seven years, is a significant consideration. In short, there is no relationship as between the children and their father. He considers that it would be in their best interests for a relationship to be resumed and the orders he proposes is but one footstep in that process of re-establishing a relationship with the children.
The issue is whether in the circumstances of this case there is a benefit to the children or indeed a significant detriment in even the first step as proposed by the father.
Overlayed on these considerations is the trenchant position of the mother that there is no circumstance which would see her support any resumption of communication or relationship with the children. It is her evidence that the father is a paedophile, that he has sexually interfered with C, D and E and that even though he will not be released before the children are well into their adulthood, nonetheless the orders that he promotes present both a physical risk to the children that it would fulfil his strategy to dominate and control the mother, but also present a very substantial psychological risk to the children with unknown consequences.
In Mazorski & Albright (2007) 37 Fam LR 518 Brown J commented on the definition of meaningful and said:-
[26]What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”…
When considering the primary considerations and the application of the objects and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child or children. It is a qualitative adjective, not strictly a quantitative one. Quantitative concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirements for time with the child to be, where possible and in their best interests, substantial and significant.
In McCall & Clark (2009) FLC 93-405 the Full Court said at paragraph [119]:-
We conclude that the preferred interpretation of benefit to a child of a meaningful relationship in s 60CC(2)(a) is “the prospective approach” although, depending upon factual circumstances, the present relationship may also be relevant. We note however that section 60CC(3)(b) requires a court to explore existing relationships between a child and his or her parents and other persons, including grandparents. If the interpretation we have set out in (a) above were exclusively applied, that interpretation would limit a court making appropriate orders in circumstances where a significant relationship had not been established between a child and parent at the date of trial.
I must therefore consider orders that serve the best interests of the children and must weigh up the competing primary considerations namely, the benefits to the children of having a meaningful relationship with both of their parents but the need to protect them from physical or psychological harm.
The father will remain in prison until 2025 at the earliest. At present he is in a restrictive high security division and his ability to communicate with persons outside of prison is via letters and telephone calls of limited duration.
He has had nothing to do with the children now for many years. The children have varying levels of understanding as to where he is. C understands that he is in prison but she does not have an understanding of the particulars of his offending. D and E have been told that he has disappeared.
I am not critical of the mother in respect of the level of information and understanding held by the children in respect of the whereabouts of their father.
So egregious is the father’s offending that it is difficult to understand or contemplate how the children could be appropriately made aware of their father’s circumstances. The matter is made more complex by the knowledge that C, D and E have of the child K, the victim of the more disturbing conduct of the father.
As discussed, there is currently no relationship. The father’s agenda is that ultimately he would see a resumption of his time with the children and considers that given that will occur at some point in the future, it would be better that there be a resumption of some relationship to better set the foundation.
Whilst it is usually the case that a child or children will benefit from a relationship with his or her parents, this is an unusual and exceptional case. The father has been convicted of horrific child abuse, sexual assault and sexual exploitation of children via the means of video and other recordings.
Additionally, some of the charges relate to the filming of the father’s step-children whilst they were bathing and showering.
It is the mother’s position that the children have no relationship with the father and in relation to C she does not wish to have a relationship, but in respect of D and E they are unlikely to have any insight into the matter.
In Sigley & Evor (2011) 44 Fam LR 439 at [136] the Full Court considered the various authorities that defined “meaningful relationship” and quoted with approval the decision of Champness & Hanson (2009) FLC 93-407:-
103. The submissions of counsel for the father also appeared at times to be based on an assumption that it was obligatory for the trial Judge to make the orders most likely to ensure the children had a “meaningful relationship” with both parents. This is an incorrect assumption. The Court’s obligation is to make the orders most likely to promote the child’s best interests. In seeking to achieve that objective s 60CC(2)(a) directs the Court to consider “the benefit to the child” of having a meaningful relationship with both parents. Even if such a benefit is established, it must still be weighed along with all other relevant factors.
The Full Court also observed at [85513] that the first and very important observation we would make about this complaint is that the expression ‘meaningful relationship’ is a legal construct, not a psychological one. It is for the Court, not an expert, to determine what constitute a ‘meaningful relationship’”.
In St Clarie & St Claire & Ors [2013] FamCA 108, Cronin J was faced with a child that was five years old at the date of separation but eight years old when judgment was delivered. The father had not had any contact with the child since separation. His Honour determined that the appropriate course was to make final orders which provided for the child to live with the mother but to spend time with the father in accordance with a strict therapeutic regime conducted over a period of approximately 12 months. His Honour said:-
[209]It is a primary consideration in s 60CC that the children have the benefit of having a meaningful relationship with both parents. In Pishke & Rupp; Bannon& Rupp [2010] FamCA 632 Murphy J noted with approval the comments of Nygh J in Cotton & Cotton (1983) FLC 91-330 at 78,252 where the question was asked whether there was a chance of a meaningful relationship which was beneficial to the children but also whether both parents had “something to offer” the children.
In M v M (1988) 166 CLR 69 the remarks of the High Court are usefully repeated:-
In proceedings under Pt VII of the Act in relation to a child, the court is enjoined to regard the welfare of the child the “paramount consideration” (s 60D). The paramountcy of this consideration in proceedings for custody or access is preserved by s 64(1). The consequence is that the ultimate and paramount issue to be decided in proceedings for custody of, or access to, a child is whether the making of the order sought is in the interests of the welfare of the child. The fact that the proceedings involve an allegation that the child has been sexually abused by the parent who seeks custody or access does not alter the paramount and ultimate issue which the court has to determine, though the court’s findings on the disputed allegation of sexual abuse will naturally have an important, perhaps a decisive, impact on the resolution of that issue.
But it is a mistake to think that the Family Court is under the same duty to resolve in a definitive way the disputed allegation of sexual abuse as a court exercising criminal jurisdiction would be if it were trying the party for a criminal offence. Proceedings for custody or access are not disputes inter partes in the ordinary sense of that expression;…the court is concerned to make such an order for custody or access which will in the opinion of the court best promote and protect the interests of the child. In deciding what order it should make the court will give very great weight to the importance of maintaining parental ties, not so much because parents have a right to custody or access, but because it is prima facie in a child’s interests to maintain the filial relationship with both parents.
…In resolving the wider issue the court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assessing the magnitude of that risk. After all, in deciding what is in the best interests of the child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact upon the child’s welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access. In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access. Even in such a case, however, there may be a risk of disturbance to a child is compulsorily brought into contact with a parent who has sexually abused her or whom the child believes to have sexually abused her. But that is not the issue in this case.
Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. The degree of risk has been described as “risk of serious harm” (A v A (1976) VR 298 at p300), “an element of risk” or “an appreciable risk” (M & M (1987) FLC 91-830 at pp 76,240-76,242; (1987) 11 Fam LR 765 at pp 770 and 771 respectively), “a real possibility” (B & B (Access) 1986 FLC 91 – 758 at p 75,546), a “real risk” (Leveque v Leveque (1983) 54 BC LR 164 at p 167), and an “unacceptable risk” (In Re G a Minor (1987) 1 WLR 1461 at p 1469). This imposing array indicates that the courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child’s paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that 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.
It is conceded in this case that, at least as far as the current orders are concerned, the father does not seek to come in direct physical contact with the children.
It is a concern of the mother that the provision of school reports, photographs and other information in respect of the children may well be disseminated to prison associates of the father with the same sexual interest of proclivity. I think that the mother’s concerns are not unreasonable in the circumstances of this case when the father’s conduct and behaviour is used as a benchmark.
The real issue though is the risk of psychological harm to the children. Whilst it is obviously unknown, I find that the risk is real and that the evidence of the family consultant is compelling. The children, according to the mother, present with a range of difficulties and developmental issues but also substantial emotional fragility.
The mother is struggling with their development and presentation and it is the evidence of the family consultant that she needs to be supported. The orders sought by the father are either promoted by him with a view to undermining her stability and therefore her ability to properly nurture the children, or if not intended then will have that consequence.
Of further difficulty is the intransigence of the mother to any suggestion that there should be any contact or communication between the father and the children.
Section 60CC(3)(a)
There are no views expressed by the children and, notwithstanding the concerns of the father in this regard, I find that to include the children in an assessment in order to divine their views would be to potentially expose them to an unacceptable risk of psychological harm. There is little or no advantage to the children in a resumption of a relationship with the father in the current circumstances. This is not a case where there is any equivocation to the father’s conduct. He has pleaded guilty to the most grievous offending involving children. Moreover, they are children with whom he was in a position of trust in the sense that they were his step-children, but also his own child in relation to K. His conduct represents a total abrogation of any sense or sensibility in what it is to exercise appropriate parenting.
Section 60CC(3)(b)
The children have a close relationship with their mother. She is their sole caregiver and it is that relationship which must be supported. The children have no relationship with their father. There is already a finding of unacceptable risk in relation to C and significant suspicion in relation to the father’s conduct with D and E in terms of an allegation that he took photographs of D’s genitals in a toilet in a McDonald’s Restaurant.
There is no extant relationship between the father and the children.
Section 60CC(3)(c), (ca),(d)
The father does not have a relationship with the children and it is not the mother’s intention to support or promote such a relationship.
Section 60CC(3)(d)
It is not proposed that the orders sought by the father will cause a separation of a child or children from the mother.
Section 60CC(3)(e)
There is scant evidence as to any practical difficulties that may be experienced were the Court to be minded to make orders in terms of the father’s application. I suspect however that appropriate arrangements could be made if it was considered that such an order or orders were appropriate. In the circumstances of this case, they are not likely to be appropriate.
Section 60CC(3)(f)
The mother has a proven history of providing for the needs of the children. She is highly protective of them and whilst there were issues as to her credit in the Judgments of Murray J and Brown J, events that have now transpired lend substantial support to the mother’s conduct being categorised as protective rather than alienating.
The father however has not demonstrated any concept of wishing to protect the children. The family consultant is of the view that the father is egocentric and self-centred. It is part of his disorder that he seeks to control, dominate and manipulate. He appears disinterested in the children and in some way his presentation and the orders he seeks are almost an attempt at vindicating or ameliorating his offending.
To the extent that it could be said the father lacks insight, such a finding would be the best that the father could hope for.
Section 60CC(3)(g)(h) and (i)
There are no matters that fall conveniently for discussion under these headings.
Section 60CC(3)(j) and (k)
There is no intervention or family violence order as between the father and the mother and/or the children. Obviously, the father is in custody following his sentencing for various serious crimes involving children.
It is relevant that the father will not be released until 2025 and that he is currently under rigorous prison conditions.
Section 60CC(3)(l) and (m)
There are no matters that are relevant for consideration.
RICE & ASPLUND REVISITED
As discussed, I considered at the outset of the proceedings that the consideration of whether there were circumstances which would permit the parenting orders currently in place to be reviewed was not necessarily appropriately undertaken as a preliminary issue.
The application of the Rule in Rice & Asplund (supra) is really to be determined according to the best interests of the children. In short, is the continued and renewed litigation likely to promote their interests.
I consider that it was necessary to hear the evidence and give careful consideration to the lengthy submissions of each of the parties and the ICL in particular because of the father’s strongly held position that the children should have formed part of the assessment process and that their wishes and views should have been ascertained.
It is not for the father to demonstrate that the orders he seeks would promote a positive advantage to the children, but rather the existence of circumstances which would warrant a reconsideration of the order.
In the Marriage of Bennett (1991) FLC 92-191 the Full Court observed at 78,2362-78,263:-
In some cases, however, and her Honour apparently considered that this was one of them, it is not easy to determine the threshold question without going into the merits of the matter. Obviously, if this is done, and as a result of taking such a course, the trial judge comes to the conclusion, as her Honour did, that a change of custody is warranted in the interests of the child, then it would be unthinkable not to give effect to such a conclusion upon the basis that no change in circumstances had been shown
…It seems to be almost impossible to argue that if a trial judge has concluded that, in the interests of a child, there should be a change in custody, such decision should be set aside upon the basis that there has been no sufficient change in circumstances…
I am rather inclined to the view that by a consideration of the Rule in Rice & Asplund (supra) at the end of the proceedings, obviously its application cannot achieve all of its potential in the sense that the litigation has been heard and is capable of determination. There is however an advantage in this case in that I am satisfied that there was no error or flaw in the methodology and approach by the family consultant in not seeking to interview the children or include them in the assessment nor indeed in the opposition by the mother and on behalf of the ICL to the father’s application to adjourn the proceedings to enable the children’s involvement to take place.
I find that there are no changes in the circumstances of the children which would warrant a reconsideration of the parenting orders already in place.
The father has not seen the children for between five and seven years and there is little or no relationship that remains. Moreover, the only significant change has been the father’s conviction for serious child related offences which could not be said enhance his case, but if anything would lend weight to the position that there should be no contact or communication between the father and the children.
I do not accede to the father’s submissions that what is being sought is a small alteration which required only an enquiry of narrow compass. The Rule in Rice & Asplund (supra) requires a consideration whether in all the circumstances it is in the best interests of the children to enable a reconsideration of the parenting arrangements to take place. I do not consider that such an enquiry should occur.
If however I am wrong in the application of the Rule in Rice & Asplund (supra) and the consequential determination arising therefrom, I find that the father presents an unacceptable risk to the children in terms of their psychological and emotional wellbeing and to the extent that the orders the father seeks involve the provision of photographs, school reports and other documents, I consider that such an outcome would expose the children to an unacceptable risk of physical harm.
APPLICATION FOR A VEXATIOUS PROCEEDINGS ORDER
Each of the parties seeks an order that the other be declared vexatious or a vexatious litigant and be prohibited or not permitted to commence further proceedings without leave of the Court.
By statute number 186 of 2012 and effective from 11 June 2013 Part XIB-vexatious proceedings was inserted into the Act. Section 118(c) no longer applies to proceedings instituted after 11 June 2013 and accordingly, an order seeking a vexatious proceedings order is now to be considered under s 102QB.
Vexatious proceedings have been defined as follows:-
(a)proceedings that are an abuse of the process of a court or tribunal; and
(b)proceedings instituted in a court or tribunal to harass or annoy, to cause delay or detriment, or for another wrongful purpose; and
(c)proceedings instituted or pursued in a court or tribunal without reasonable grounds; and
(d)proceedings conducted in a court or tribunal in a way so as to harass or annoy, cause delay or detriment, or achieve another wrongful purpose.
A vexatious proceedings order means an order made under s 102QB(2).
Section 102QB provides:-
(1)This section applies if a court exercising jurisdiction in proceedings under this Act is satisfied:-
(a)a person has frequently instituted or conducted vexatious proceedings in Australian courts or tribunals; or
(b)a person, acting in concert with another person who is subject to a vexatious proceedings order or who is covered by paragraph (a), has instituted or conducted vexatious proceedings in an Australian court or tribunal. (emphasis added)
(2)The Court may make any or all of the following orders:-
(a)an order staying or dismissing all or part of any proceedings in the court already instituted by the person;
(b)an order prohibiting the person from instituting proceedings, or proceedings of a particular type, under this Act in a court having jurisdiction under this Act;
(c)Any other order the court considers appropriate in relation to the person.
The note to the section provides:-
Examples of an order under paragraph (c) are an order directing that the person may only file documents by mail, an order to give security for costs and an order for costs.
If an order under s 102QB(2) is made (a vexatious proceedings order) that brings into operation the provisions of s 102QD namely, that a person must not institute proceedings, that if instituted the proceedings are stayed (s 102QD(2)) and the provisions for an applicant to apply to the court for leave in circumstances where they are subject to a vexatious proceedings order which prohibit a person from instituting proceedings or proceedings of a particular type under the Act and in a court having jurisdiction under the Act (s 102QE).
In the circumstances of this case and the orders that I propose to make, it is only the mother’s application seeking that the father be subject to a vexatious proceedings order that needs to be considered.
The Explanatory Memorandum in respect to Division 2 and including s 102QB provides:-
209.Subsection 102QB(1) expressly allows a court to take into account vexatious proceedings instituted or conducted by a person in any other Australian court or tribunal, as well as in that particular court, so that a person need not have a history of vexatious proceedings just in that particular court before the court could consider making a vexatious proceedings order against them. One of the purposes of this provision is to minimise the possibility of a person unsuccessfully pursuing vexatious proceedings in one court, and then trying again with similar vexatious proceedings in another court.
The provisions of s 102QB(6) provide:-
For the purposes of subsection (1), the court may have regard to:-
(a)Proceedings instituted (or attempted to be instituted) or conducted in any Australian court or tribunal; and
(b)Orders made by any Australian court or tribunal; and
(c)The person’s overall conduct in proceedings conducted in any Australian court or tribunal (including the persons compliance with orders made by that court or tribunal); including proceedings instituted (or attempted to be instituted) or conducted, and orders made, before the commencement of this section.
It is my current understanding that proceedings have only been issued in the Family Court of Australia by each of the parties. I am aware of proceedings in the Federal Circuit Court involving the child K, but I have not brought those proceedings to account save as was raised in the cross examination of the father by reference to his appeal against orders made prohibiting any communication or contact between the father and K.
Accordingly, for there to be a finding that is appropriate to make a vexatious proceedings order pursuant to s 102QB(2) the following needs to be satisfied:-
(a)That there have been vexatious proceedings brought in Australian courts or tribunals;
(b)That the father has frequently instituted such proceedings.
The legislative pathway was considered by Benjamin J in Cannon & Acres [2014] FamCA 104. At [440] the following appears:-
The approach to this determination I have adopted is:-
(i)In accordance with section 102QB(1) I will determine which proceedings constitute vexatious proceedings instituted or conducted in Australian courts or tribunals;
(ii)If there have been vexatious proceedings, I will then determine whether such proceedings have been conducted or instituted frequently. In that consideration, I am able to have regard to proceedings instituted (or attempted to be instituted) or conducted in any Australian court or tribunal orders made by an Australian court or tribunal and the persons overall conduct in such proceedings, including compliance with orders made by that court or tribunal (including proceedings instituted (or attempted to be instituted) or conducted before the commencement of Part XIB of the Act); and
(iii)If that threshold test is met, I will then consider whether to exercise the discretion set out in s 102QB(2) of the Act and make a vexatious proceedings order. In considering whether to make a vexatious proceedings order I consider the scope and nature of the orders sought and made.
Section 102Q(1) provides the definition of “vexatious proceedings”. The question is then whether any of the proceedings instituted in a court (but in this case the Family Court) could be considered as vexatious.
In Marsden & Winch [2013] FamCAFC 177 the Full Court at [150]considered the test necessary to determine whether proceedings are vexatious and referred to the decision of Attorney-General v Wentworth where Roden J said:-
This is obviously a critical term, and can hardly be regarded as mere surplusage. If, as I believe must be the case, “habitually and persistently and without any reasonable ground institutes vexatious legal proceedings” means something different from “habitually and persistently and without any reasonable ground institutes legal proceedings”, then relevant vexation cannot be found simply in the habitual or persistent manner in which legal proceedings are instituted, in a lack of reasonable ground for their institution, or in a combination of those factors. Something more is required. Similarly, the use of the words “without any reasonable ground”, implies that it would be possible to institute vexatious legal proceedings, and indeed to do so habitually and persistently, with reasonable ground.
Benjamin J considered that the definition of “vexatious” adopted by the Full Court in Marsden & Winch (supra) may need to be expanded and given a wider meaning taking into account s 102Q(1) of the Act.
The father has certainly been a party to the various proceedings in this court, but it is only in respect of the institution of the current proceedings by Initiating Application filed 4 June 2014 where consideration as to whether the proceedings are “vexatious” arises.
Indeed in terms of the findings of Murray J and Brown J, it could not be said that there was any aspect of the father’s presentation which was vexatious. Indeed, if anything, their Honours were critical of the mother’s presentation. It may be the case that in hindsight different considerations may have been brought to account but it could not be said that the presentation of the father was vexatious.
It could be argued that so barren and devoid of merit is the father’s current application that it amounts to an abuse of process and that its primary purpose and focus is to harass, annoy or “vex” the mother. Whilst to her that would seem an attractive and apposite observation, the father’s position is quite different. He would consider although somewhat misguidedly, that his incarceration until 2025 provides for the complete physical safety of the children and the orders that would enable communication, photo, information and the exchange of small gifts are benign and targeted towards the children’s best interests.
I do not consider that in respect of the confines of the current hearing the husband’s application should be considered “vexatious”.
Complexity is further compounded by the need for vexatious proceedings to have a level of frequency or repetition about them in either this court or other courts. Even were I to find that the father’s conduct and the nature of the proceeding before me are “vexatious proceedings”, it could not be said that the father has “frequently instituted or conducted vexatious proceedings in Australian courts or tribunals”. The Explanatory Memorandum in relation to the relevant threshold test of what might be considered frequent highlights:-
The threshold will need to be met under paragraph 102QB(1)(a) is that a person who has instituted or conducted vexatious proceedings in Australian courts and tribunals “frequently”. Clause 5 of the Standing Committee of the Attorney General Vexatious Proceedings Model Law provides a choice between this “frequency” test and a test that requires a court to be satisfied that a person has “habitually and consistently” instituted and conducted vexatious proceedings which was a traditional test.
Whilst I accept that the number of proceedings may be few in number, if there is an attempt to “re-litigate an issue already determined” (see the consideration by Davies J in Attorney General in and for the State of NSW v Gargan(No2) [2009] FCA 398), the sample cannot be limited to a single application or proceeding.
I have considered in this context the orders sought by the father in his Response filed 11 January 2011 in terms of orders that he sought namely, that C, D and E live with him and he have sole parental responsibility. It could be said that the orders sought by the father in that application were extraordinary knowing as he must that he had committed serious criminal offending to which he ultimately pleaded guilty.
Notwithstanding the boldness of his response, I do not consider that it taken together with the current proceedings could satisfy the threshold test of frequency. Accordingly it would not be appropriate to make a vexatious proceedings order.
It is necessary to note however that during the course of the proceedings the father conceded that if the court did not find favour with his current applicant then he would not embark upon further proceedings seeking parenting orders.
CONCLUSION
I make orders as appear at the commencement of these reasons.
I certify that the preceding two hundred and seventy four (274) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 21 July 2015.
Associate:
Date: 21 July 2015
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