Malic and Cussens
[2018] FamCA 577
•30 July 2018
FAMILY COURT OF AUSTRALIA
| MALIC & CUSSENS | [2018] FamCA 577 |
| FAMILY LAW – CHILDREN – Parenting Orders – Where mother seeks that the child neither spend time nor communicate with the father as he poses an unacceptable risk of harm to the child – Where father seeks that he spend alternate weekends and half of school holidays with the child –Where it is found the father does not pose an unacceptable risk of harm to the child – Where parties are to exercise equal shared parental responsibility – Where the parties’ residences do not make it reasonably practicable for the child to spend equal time with each party – Where it is in the child’s best interests to live with the mother and spend significant and substantial time with the father |
| Family Law Act 1975 (Cth) ss 4, 4AB, 60B, 60CA, 60CC, 61DA, 65DAA, 65DAC Evidence Act 1995 (Cth) ss 140 |
| Banks & Banks [2015] FamCAFC 36 Mauldera & Orbel (2014) FLC 93-602 Wacando v The Commonwealth (1981) 148 CLR 1 S v Australian Crime Commission (2005) 144 FCR 431 Neat Holdings Pty Ltd v Karajan & Holdings Pty Ltd (1992) 67 ALJR 170 N & S & The Separate Representative (1996) FLC 92-655 M v M (1988) 166 CLR 69 Harridge & Harridge [2010] FamCA 445 Re Andrew (1996) FLC 92-692 Russell v Close (Unreported, 25 June 1993) Bayer & Imhoff [2010] FamCA 532 Sedgley & Sedgley (1995) FLC 92-623 |
| APPLICANT: | Ms Malic |
| RESPONDENT: | Mr Cussens |
| INDEPENDENT CHILDREN’S LAWYER: | Mr Grainger |
| FILE NUMBER: | BRC | 4228 | of | 2015 |
| DATE DELIVERED: | 30 July 2018 |
| PLACE DELIVERED: | Cairns |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Tree J |
| HEARING DATE: | 9,10, 11 and 12 April and 10 May 2018 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Bunning |
| SOLICITORS FOR THE APPLICANT: | Hirst & Co |
| COUNSEL FOR THE RESPONDENT: | Mr George |
| SOLICITORS FOR THE RESPONDENT: | Phillip E Crook Lawyers |
| COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER: | Ms Christie |
| SOLICITORS FOR THE INDEPENDENT CHILDREN'S LAWYER: | Legal Aid Queensland |
Orders
(1) That all previous Orders be discharged.
Living arrangements
(2) That the child X born … 2009 (“the child”) shall live with the Mother.
Time and communication with the Father
(3) That the child spend time and communicate with the Father as agreed between the parties and failing agreement as follows:
a. Commencing 3 August 2018 each alternate weekend during School Terms from 5.00 pm Friday to 3.00 pm Sunday to include long weekends where those weekends fall at such time and, in particular, to commence 5.00pm Thursday if the Friday is a public holiday and to terminate 3.00 p.m. Monday if the Monday is a public holiday or a pupil free day;
b. By telephone each Tuesday and Thursday evening between 4:30 pm and 6:00 pm, with the Father to instigate the telephone call to the child’s mobile number;
c. If Father’s Day falls on a weekend when the child is not already spending time with the Father, from 5:00 pm on the Saturday before Father’s day until 3:00 pm on Father’s day, provided that where Mother’s Day falls on a weekend when the child is spending time with the Father, the time cease at 5:00 pm on the Saturday before Mother’s Day;
d. From 3.00 pm Christmas Eve to 3.00 pm Boxing Day in even years, with no time to occur from 3:00pm Christmas Eve to 3:00 pm Boxing Day in odd years; and
e. For one half of all Queensland gazetted School Holidays and, in particular for the first half in even years and for the second half in odd years subject to paragraph 2(d).
f. From 5:00 pm Friday 24 August 2018 to 3:00pm Sunday 26 August 2018, if not already doing so pursuant to Order 3(a). If this weekend is time the child would otherwise be with the Mother, the child shall spend the following weekend with the Mother.
Parental Responsibility
(4) That the Mother and the Father have equal shared parental responsibility for the major long-term decisions for the child.
Changeover
(5) That for the purposes of changeover the Father shall collect and deliver the child to the Café B, C Town.
(6) That in the event either party is unable to facilitate the child’s time, he/she will provide 24 hours notice (via text) to the other party, except in the case of emergency.
School holiday specification
(7) That for the purposes of changeover of School Holiday time save as that mentioned herein:-
First half of School Holidays
a.To commence at 5.00 pm on the first Friday in the final week of the School Term;
b.To conclude at 3.00 pm on the mid Saturday half way through the School Holidays;
Second half of School Holidays
c.To commence at 5.00 pm on the mid Saturday half way through the School Holidays;
d.To conclude at 3.00 pm on the last Sunday before the commencement of the School Term.
Other orders
(8) That neither parent will consume nor be under the influence of alcohol above the legal driving limit or consume illicit drugs for a period of 24 hours prior to and during any time they spend with the child.
(9) That both parties be restrained from discussing these proceedings in the presence or hearing of the child, and both parties are to use their best endeavours to ensure that others do not discuss these proceedings in the hearing or presence of the child.
That the parties, within 7 days of the making of this order shall install or ensure parental control filters are installed on any computer or mobile device in his possession to prevent the child from inadvertently accessing websites that are inappropriate for children.
That neither party denigrate or insult the other party or their family in the presence or hearing of the child and shall use their best endeavours to ensure that others do not denigrate or insult the other party or their family in the hearing or presence of the child.
That each party shall keep the other informed in writing of his/her current residential address and contact telephone number and of any change thereto within forty-eight (48) hours of any such change.
That for the purposes of communication between the parents, they shall communicate by text message or email or as otherwise agreed.
That the Mother and the Father by these Orders authorise all Health Care Providers, Educational Experts and Extra-Curricular Activity Providers involved with the child from time to time to liaise directly with them at his/her request and at his/her expense.
That the Mother and Father be at liberty to attend all School functions to which parents are invited including, but not limited to, Sports Days, Carnivals, Concerts, Plays, Fetes, Parent/Teacher Meetings and the like.
The Independent Children’s Lawyer is forthwith discharged with the thanks of the Court upon the later of the expiration of the appeal period in respect of these orders, or the determination of any appeal.
Otherwise all extant applications be dismissed and the matter is removed from the list of active pending cases.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Malic & Cussen has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
FILE NUMBER: BRC4228/2015
| Ms Malic |
Applicant
And
| Mr Cussens |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
These proceedings concern the appropriate parenting arrangements for X, born in 2009, and hence presently eight years of age (“the child”). For her part, Ms Malic (“the mother”) primarily seeks orders that the child neither spend time nor communicate with Mr Cussens (“the father”) ever again. She justifies those orders on the basis that the father poses such a risk of harm to the child, that the only means of adequately mitigating it is to wholly sever the relationship. In the first cascading alternative, she seeks orders that any time with the father may spend with the child be strictly supervised, and in the second alternative, that the current arrangements (which see the father spend unsupervised time with the child during the day) continue, albeit at a lesser frequency.
For his part, the father primarily seeks orders that the child spend unsupervised time with him on each alternate weekend and for one half of school holidays. Implicit in those orders is an emphatic denial that he poses any risk of harm to the child, and certainly not any risk which requires either the termination of his relationship with the child, or supervision of his time with her.
The Independent Children's Lawyer supported the position of the father.
THE FACTS
The mother
The mother was born in 1978, and hence is presently 40 years of age. I know little of her life prior to forming a relationship with the father, save that she has no children to any previous relationships she may have been in. It appears as though at some stage she was employed in a professional capacity before finding employment in the transport industry. She met the father in October 2004, when she was 26 years of age.
The father
The father was born in 1963, and hence is presently 54 years of age. Again I know little of his early life, save that at some stage he was employed in the public service, and whilst there, was trained in transport. After leaving the public service he commenced employment in the private sector in the transport industry, rising to management positions.
At some stage, seemingly reasonably early in his life, the father formed a relationship with a woman to which relationship three children were born, Ms W, Ms Y and Z.
At some stage his first relationship failed, although I know nothing of the parenting arrangements which ensued for any minor children. At all events, in October 2004, when he was aged 41, the father met the mother in their mutual place of employment, and shortly thereafter formed a relationship.
The relationship
The parties commenced living together in about February or March 2005. The mother says that, at that time, Ms W was 26, Ms Y 23 and Z about 17 years of age. She recalls that they all met every few months and celebrated events together. Z stayed with the parties for some periods of time in about 2006.
The child X was born in 2009. From the time she was nine months old, the parties resided in rented accommodation at D Street, E Town. They continued living there until separation, and indeed the mother continued to live there with the child for a year afterwards.
It is uncontroversial that during the relationship the father continued to be employed in the transport industry. That would frequently require him to work rotation rosters.
Then when the child was about 10 months of age, the father obtained work in Country F, on a rotation of one month away, followed by 10 to 12 days at home. That employment continued for 18 months. Thereafter he obtained employment in various transport operations, again requiring him to be absent from the home for periods of time, normally about five to seven days per week, and returning home for shorter periods of time.
In 2011 the parties married.
Although at the time unbeknownst to the mother, by early 2013 the father was beginning to explore his sexuality. On 13 March 2013, as part of that process, he established a profile on a bisexual website as the father now identified as being bisexual. Part of his profile description included an invitation to potential sexual partners to contact him. Subsequently the father has denied in fact ever meeting any sexual partners using that site prior to separation. The mother rejects that contention.
In mid-2013 the father obtained work as a supervisor in southern Queensland. That employment required him to work away for two weeks, and then be at home for two weeks.
During the course of the relationship the mother was employed full time as a manager, although she worked remotely from home after the child was born, with the assistance of babysitters. It is not in contention that the mother was primarily responsible for the child’s care.
At some time the mother ceased employment in the transport industry and commenced back working in her earlier profession.
On 28 August 2014 it is agreed that the parties separated, although they both remained living in the former matrimonial home. They did not subsequently reconcile.
Post-separation
As I have indicated, initially the parties remained living together under the one roof, albeit separated. They continued to both be involved in the care of the child.
On 24 October 2014, the father established a profile on another dating site. He indicated that he was seeking a “lady boy” and part of his profile description said that he was “sick of being married recently separated.” His profile stipulated that the minimum age of any person he was looking for would be 19.
In early November 2014, whilst the father was away on work, the mother was using one of his old mobile phones. She received an email on that phone providing a username and password to the father’s website account. Using that username and password, she logged into that website and discovered the father’s profile. The mother took screen shots of it, which were in evidence before me. On 4 November, when he eventually returned from work, she confronted the father in relation to his profile, but he indicated that it was none of her business, as they were separated.
Later that evening, the father eventually went to bed. He left his phone on the kitchen bench and the mother investigated it. That led to her becoming aware of the father’s bisexual website profile, which indicated his interest in a variety of sexual activities. The mother’s trial affidavit says:
There are also explicit photographs of the father and other men on his profile. I was shocked that the father’s profile stated that he was bisexual. As previously stated, I was unaware that the father had any sexual interest in men. He had not ever told me that he was interested in men.
Her affidavit continued to detail that she was shocked, shaking, and holding back tears as a result of her discovery. She was particularly troubled that the father had joined the bisexual website during the course of their marriage, and well prior to separation.
She says that she then took his house keys off his keyring, logged into his internet banking, and transferred sums of money to herself. The precise sum in question is controversial, but it was at least $14,000.00. She then woke the father up, confronted him in relation to his website profile, and ordered him out of the house. After packing his bags, he left.
The mother concedes that from that point, until about June 2015, she was “very angry and upset about the fact that he had lied to me and had been participating in casual sexual relationships with men, including meeting in public places to engage in sex, for a number of years throughout our marriage.” In consequence the mother underwent testing to ensure that she had not contracted any disease, says that she began to have panic attacks on a daily basis, and was prescribed and took medication to control her anxiety.
At least during this period, the mother concedes that, in phone calls with the father, she said insulting things to him in relation to his sexual preferences, which she says she now regrets “particularly as the child was present during some of those conversations.”
In October 2014 the mother ceased to be in employment. She did not work again until July 2016.
In November 2014, the father went on holidays to Asia. It appears as though he was absent from 17 to 23 November. The father’s outgoing passenger card records that the purpose of the visit was a holiday. The mother believes that at least a significant part of the focus of the trip was sexual activities. That visit thereafter became a fertile ground for the mother insulting and abusing the father.
From November 2014 until mid-January 2015, the father spent time with the child at the mother’s home. The unchallenged evidence of the mother is that from mid-January 2015 until May 2015, the father spent four further such occasions, including Easter Sunday.
In November 2014 the father met his current partner, Mr G. In the middle of January 2015 they commenced living together. By May 2015 they were living together, with Mr G’s mother, at her home in H Town, some 35 minutes south west of J Town.
It seems likely that by May 2015, the mother was regularly consuming significant quantities of alcohol.
On Saturday 9 May 2015, the mother, a friend, and the child, went camping for the weekend. They returned to the mother’s home at about 3:30 pm on Sunday 10 May. At 6:00 pm the child went to bed. The mother says that by 6:30 pm the child was asleep. At 8:00 pm that night, a friend arrived, and he and the mother commenced drinking. The mother claims that she had about four or five glasses of wine, although her later blood alcohol concentration reading makes me doubt that it was only that amount.
The mother says that the friend came over “for a few hours to have a glass of wine with me on the back patio, before catching a cab home later that evening.” Her affidavit continues:
After my friend left, I dozed off in my seat on the patio, as I was exhausted from the camping trip and had approximately four-five glasses of wine over the period of the entire evening.
I am unable to recall the precise details of what happened next as I had been asleep, however I recall being awoken by the police yelling and screaming at me. I recall them dragging me through the house to the front door and a male and a female officer handcuffing me out the front of my home, and putting me in the back of a police vehicle.
In evidence before me were the police records of that event. They state that police were contacted, it seems, at about midnight on the Sunday by a friend of the mother’s. She contacted police because she had received a text from the mother which read “HELP. Can you get the cops to my house… am being held hostage.”
The mother concedes that she sent the text, but said that it was a standing joke between her and the friend about her reluctance to go camping, and her need to be rescued if ever she did.
The police records continue:
Police attended the address and observed [the mother] passed out drunk in (sic) the patio. Police also observed a male person leaving the address upon arrival, checks confirm that he was a guest at the house. Police attempted several times to wake up [the mother], however it took waking her with cold water to the face. [The mother] was extremely intoxicated at this time and very aggressive towards police. Police located [the child] asleep in one of the bedrooms. [The mother] refused to provide police with any version about the text message or her actions. [The mother] was then arrested due to hindering police investigation and her loud screaming woke up [the child] who was visibly upset…
Police have serious concerns for the welfare of [the child] due to the fact that [the mother] was so intoxicated she would not be able to provide care to [the child] if required. [The mother] was so intoxicated that at the watch house she provided an alcohol breath reading of 0.250, five times over the legal limit, and she required QAS treatment.
It appears that, whilst in police custody, the mother suggested that the child should be put into the care of the father’s daughter, Ms W, and that occurred. Apparently the child was taken to the police station where she remained until Ms W collected her. The father then himself collected the child from Ms W’s home at about 4:00 am that morning.
At about 4:45 am the mother was released from custody, and walked home. Almost immediately the mother contacted the father, demanding that the child be brought back to her. The father did not respond, and thereafter did not answer her calls. Later that day the mother contacted her solicitors, and they also commenced demanding the return of the child to the mother on her behalf. The father indicated that he wanted to take some legal advice, but reassured them that the child was being cared for in an environment “that is best for her at this point of time…” Later that evening, the father facilitated the child speaking with the mother for, according to the mother, about two minutes. The parties also exchanged some text messages in which the father asserted that the mother needed to obtain “help for your drinking problem and your attitude,” or similar words.
In his email to the mother’s solicitors sent at 5:26 pm on Monday 11 May 2015, in part the father said “[the mother] has brung (sic) this situation upon herself iad (sic) is currently being investigated by Child Service (sic) …” I am satisfied that, from at least that time, the mother was apprehensive about an investigation in relation to the circumstances which saw the child removed from her care early in the morning of 11 May.
On 13 May 2015 these proceedings were commenced by the mother.
On Friday 15 May the mother drove to H Town, in an attempt to locate the child, and attended the police station there. Coincidentally, whilst she was there, the father also arrived with the child. Ultimately the parties agreed that the child should go back into the mother’s care. She then drove back home to Brisbane. She says she returned there in the afternoon and took the child to her ensuite bathroom to have a shower, and get her into her pyjamas ready for bed. Her evidence is that before getting into the shower, the child sat on the toilet to urinate, but held her hand over her vagina, causing urine to go onto the floor and toilet seat. The mother says this was unusual.
The mother then says she put the child in the shower, and during a conversation with the child about why she had held her hand over her vagina, the child made statements which the mother has, it seems, subsequently construed as a disclosure of sexual abuse. Particularly the child indicated that the father had put “panther cream” on her “bottom” which, upon inquiry, indicated was a reference to her vagina.
During the ensuing weekend, according to the mother’s evidence, she and her friend then undertook some internet research as to “panther cream” and came across a spray called “Black Panther” which is some species of sexual enhancement product. The mother says that she and the friend printed off a picture of that product, and during a game with the child, she said “my daddy has that cream. I saw it on the floor and he showed me and he sprayed on his neck” or words to that effect.
I will need to evaluate in greater detail the various versions which the mother has subsequently given of the alleged disclosure, and indeed the child’s subsequent alleged disclosures to others.
On Tuesday 19 May 2015 the mother’s solicitors emailed the father, and posed a number of questions arising from the child’s alleged disclosure. The father did not immediately respond, but instead sent an aggressive text to the mother, in substance denying any sexual misconduct by him towards the child.
On 18 June 2015, the child was interviewed by Queensland Police officers. It is controversial between the parties as to whether anything the child told the police officers comprises a disclosure of abuse by the father. I am not satisfied that there were disclosures, and note that was the view of the investigating police, who thought that the matter, “appears an incident actioned by the father has been blown out of context by [the mother]” and positively concluded that “there is sufficient evidence to indicate the offence did not occur…”
The matter appears to have first come before the Federal Circuit Court on 30 June 2015, on which occasion Judge Howard made orders for the child to live with the mother, but spend time with the father each alternate Saturday, and thereafter each alternate Saturday and Sunday from 10:00 am until 4:00 pm. Those orders were revisited on 17 December of that year, on which occasion orders were made that the child spend time with the father each Sunday from 8:00 am until 5:00 pm, together with time on Christmas Day.
In September 2017 the mother commenced living with her current partner, Mr K.
Two further allegations of alleged impropriety are made by the mother against the father. The first arises from an occasion in February 2016 when, after the child had spent time with the father, she allegedly reported to the mother that the father had been sick and vomited everywhere, that his partner had refused to clean up the vomit, and the child had to do so, including getting into the shower with the father to wash him. The father denies this.
The final matter arose on the Saturday prior to trial. The mother says that the child disclosed that she had seen penises, and particularly the father’s. The mother says that the child simulated male masturbation whilst explaining to her the circumstances in which she had experienced the penises.
I shall consider all of those matters in detail when assessing the level of risk which the father poses to the child.
Because the parties’ credit was a live issue at trial, the father was extensively cross-examined by reference to his travel to and from Australia after he was declared bankrupt in August 2016. The mother does not assert that evidence is relevant to anything other than credit. The dispute centres around the father’s assertion that he is presently unemployed, but has, so he says, the promise of employment with an international company once these Family Court proceedings have resolved. He claims that his fairly regular travel to and from various locations in the world is associated with initially, selection, then familiarisation, and then training, in relation to that prospective employment. For her part, the mother does not accept that, and says that the father is in fact already the Chief Operating Officer of the company.
I will need to discuss that in greater detail when considering the parties’ credit.
Current situation
As at the time of the conclusion of the trial before me, the father remained living in a de facto relationship with Mr G, and they both cohabit with Mr G’s mother in her home at H Town. The father’s three adult children and their families all live either in L Town or M Region of New South Wales, and the father says that he and Mr G hope eventually to also settle in the L Town region.
For her part, the mother remains living with Mr K in a bayside suburb of Brisbane. Mr K has two adult children, who live independently.
The child is presently attending N School. She appears to be doing well there, and generally.
As a result of the alleged disclosures being made to the mother on the eve of the trial, the mother has made further notifications to the Department and police. They remain unresolved at the time I reserved this judgment, and no party has sought to re-open their case.
THE ISSUES
With the assistance of the parties, during the course of the trial, I identified the following as the likely issues in this case, in the sense that their determination is likely to substantially impact upon the outcome of the case:
1.What is the nature of the relationship between the child and each parent, and that parent’s partner;
2.What risk, if any, does each parent and their household pose to the child and what, if any, means are available to mitigate such risk;
3.Would the child benefit from a meaningful relationship with each parent, and if so, how might it best be facilitated;
4.Would each parent facilitate a meaningful relationship between the child and the other parent;
5.What is the likely impact on the child of each parties’ proposal;
6.Would the parties’ communication be sufficient to support equal shared parental responsibility, or sole parental responsibility with an obligation to consult the other parent.
Once I have considered the relevant statutory provisions and legal principles, but in advance of a traverse of any residually relevant s 60CC considerations, I will discuss those issues and then determine the appropriate parenting orders in this case.
RELEVANT STATUTORY PROVISIONS AND LEGAL PRINCIPLES
The statutory regime
Part VII of the Family Law Act contains the relevant statutory provisions dealing with children. Section 60B specifies the objects of Part VII, and the principles underlying those objects in the following terms:
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 61DA(1) of the Family Law Act provides that the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. In the event that, either because that presumption applies, or because it is otherwise in the child’s best interests that there be an order providing for equal shared parental responsibility, the court is obliged pursuant to s 65DAA(1) to then consider certain matters, including whether the child should spend equal time with each of the parents, or substantial and significant time.
However s 61DA(2) provides that the presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in either abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family) or family violence. Further, subsection 61DA(4) provides that the presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for its parents to have equal shared parental responsibility.
In this context it is convenient to also advert to s 65DAC, which sets out the effect of a parenting order that provides for shared parental responsibility. By subsection (3) such an order is taken to require each of the persons subject to it to consult with the other person in relation to the decision to be made about any major long-term issue in relation to the child, and make a genuine effort to come to a joint decision about that issue. It can therefore be seen that the obligations which an order effecting equal shared parental responsibility imposes are potentially onerous.
Finally s 60CA provides that in deciding whether to make a particular parenting order, the court must regard the best interests of the child as the paramount consideration. The matters which a court must have regard to in determining the best interests of a child are set out in s 60CC. Consideration does not mean discussion: Banks & Banks [2015] FamCAFC 36 at [49].[1]
[1] Although that case was in relation to interim orders, there is no reason to think it does not equally apply to final orders.
In Mauldera & Orbel (2014) FLC 93-602 the Full Court had occasion to consider the interrelationship between s 60B and ss 60CC. At [72] the Court applied the principles enunciated in Wacando v The Commonwealth (1981) 148 CLR 1 in concluding that objects clauses, such as those contained within s 60B(1) can be used as an aid to the construction of words of legislation, but cannot be used to cut down the plain and unambiguous meaning of a provision if that meaning in its textual and contextual surroundings is clear (quoting from S v Australian Crime Commission (2005) 144 FCR 431 at [22] per Mansfield J). At [79] the Court concluded that the primary Judge could not attach greater weight to the factors referred to in s 60B than to the outcome of her s 60CC deliberations, and in doing so, her Honour had erred.
The notion of unacceptable risk
It is useful to consider the authorities which give some guidance as to what is an unacceptable risk, and particularly the relationship of any such risk with the orders that the Court is contemplating. A useful starting point is the decision of the Full Court in N & S & The Separate Representative (1996) FLC 92-655, where in the well-known passage at 82,713-4, Fogarty J said:
Thus, the essential importance of the unacceptable risk question as I see it is in its direction to Judges to give real and substantial consideration to the facts of the case, and to decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm to the child. Thus, the value of the expression is not in a magical provision of an appropriate standard, but in its direction to Judges to consider deeply where the facts of a particular case fall, and explain adequately their findings in this regard.
In M v M (1988) 166 CLR 69, the High Court had occasion to consider the approach in Family Court proceedings albeit in the context of allegations of sexual abuse of a child. At [20] and [25] the Court said as follows:
20. 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 parties in the ordinary sense of that expression: Reynolds v Reynolds (1973) 47 ALJR 499; 1 ALR 318; McKee v McKee (1951) AC 352, at pp 364-365. In proceedings of that kind the court is not enforcing a parental right of custody or right to access. 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: cf. J. v Lieschke [1987] HCA 4; (1987) 162 CLR 447, at pp 450, 458, 462, 463-464.
…
25. Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. The degree of risk has been described as a "risk of serious harm" (A v A [1976] VicRp 24; (1976) VR 298, at p 300), "an element of risk" or "an appreciable risk" (Marriage of M (1987) 11 Fam LR 765, at p 770 and p 771 respectively), "a real possibility" (B. v. B. (Access) (1986) FLC 91-758, at p 75,545), a "real risk" (Leveque v Leveque (1983) 54 B CLR 164, at p 167), and an "unacceptable risk" (In re G. (a minor) (1987) 1 WLR 1461, at p 1469). This imposing array indicates that the courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child's paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.
In Harridge & Harridge [2010] FamCA 445 Murphy J, having referred to N & S & The Separate Representative (supra), proceeded to adopt the following list of inquiries in relation to risk assessment:[2]
(1) What harmful outcome is potentially present in this situation?
(2) What is the probability of this outcome coming about?
(3) What risks are probable in this situation in the short, medium and long term?
(4) What are the factors that could increase or decrease the risk that is probable?
(5) What measures are available whose deployment could mitigate the risks that are probable?
[2] Taken from B Mahendra “Psychiatric Risk Assessment in Family and Child Law” (2008) 38 Family Law 569.
I gratefully adopt that passage as helpful in cases such as these in analysing the asserted risk.
The standard of satisfaction required
Section 140 of the Evidence Act 1995 (Cth) provides as follows:
140(1) In a civil proceeding, the Court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2) Without limiting the matters that the Court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence;
(b) the nature of the subject-matter of the proceedings;
(c) the gravity of the matters alleged.
In Neat Holdings Pty Ltd v Karajan & Holdings Pty Ltd (1992) 67 ALJR 170 at 170-171 the majority of the High Court stated:
The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. On the other hand the strength of the evidence necessary to establish a fact or fact on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary “where so serious a matter as fraud is to be found”. Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a Court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct.
Therefore consistent with s 140(2), in taking into account the gravity of the mother’s allegations against the father, I propose to carefully evaluate the evidence relied upon in support of such a contended finding and be particularly vigilant to identify and place reduced weight upon “inexact proofs, indefinite testimony or indirect inferences.”[3]
[3] See K v R (1997) 22 FamLR 592 and Re Ms W (sex abuse – standard of proof) [2004] FamCA 768 at [15].
Abuse, neglect and family violence
“Abuse” is defined in s 4 of the Family Law Act in the following terms:
Abuse, in relation to a child, means:
(a) an assault, including a sexual assault, of the child; or
(b) a person (the first person) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is unequal power in the relationship between the child and the first person; or
(c) causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or
(d) serious neglect of the child.
Neither the term “neglect” nor indeed “serious neglect” appears to be defined in the Act; absent any indication in the Act to the contrary they should therefore have their usual dictionary meanings. I can discern no contrary indication in the Act. The relevant definition of the word “neglect” in the Macquarie Dictionary is “to be remiss in care for or treatment of.”
“Family violence” is defined in s 4AB(1) of the Family Law Act in the following terms:
For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the persons family .. or causes the family member to be fearful.
Section 4AB(3) provides that for the purposes of the Act, a child is exposed to family violence if the child sees or hears family violence, or otherwise experiences the effects of family violence. Section 4AB(2) and (4) respectively give examples of behaviour that may constitute family violence, and examples of situations that may constitute a child being exposed to family violence.
“No contact” orders
Obviously it is a serious matter to order that a child neither spend time with nor communicate with a parent. Such orders properly ought be restricted to cases where that outcome is plainly mandated in the best interests of the child, and no other regime of orders is appropriate or workable. They should only be employed where the Court is satisfied that a parent poses an unacceptable risk of harm to a child, which cannot be adequately mitigated by supervision of time and communication between that parent and the child, or some other risk mitigation measure. The authorities germane to that situation were reviewed by the Full Court in Re Andrew (1996) FLC 92-692.
CREDIT
Both parties contended that the other was not creditworthy. For his part, the father challenged the mother’s veracity in relation to the alleged disclosures, or at least the circumstances from which they were generated, and therefore I shall defer considering her credit until addressing those matters, if that proves necessary to resolve them. For her part the mother says that the father’s denial of sexual assaults of the child are false, and in support of that argument, points to unrelated matters which call into question the father’s credibility. Inevitably these discussions overlap with the substantive issues in the case, but nonetheless I make the following observations in relation to the father’s credit.
The principal attack on the father’s credit related to his allegedly false evidence in relation to his employment. Particularly it is said that the father falsely denies being in employment, when in fact he is presently, and has been for some years, the Chief Operating Officer of a company known as Company O.
The high water mark of the evidence in support of the mother’s claim is in the form of a number of photographs which were tendered into evidence. They show a variety of things. The first is a document purportedly signed by the father, which appears to be a partnership certification between “Company O,” and “P Law Firm.” It is dated 31 October 2015, which coincides with one of father’s visits overseas. It purports to be signed by him as the Chief Operating Officer of Company O. The father denies that it is his signature, and indeed it does appear markedly different to the signature which appears on all of his affidavits.
There were also a variety of photographs of the father, mostly derived, it appears, from a website allegedly owned by Company O, in which he is dressed in a suit, and appears to be assuming positions of responsibility. Particularly, one of them appears to be of him presenting a prize to someone, another is of him apparently flanked by two security guards, another is of him sitting on a podium, another is of him sitting at what appears to be a reasonably prominent table at some sort of dinner, another is of him painting a Chinese dragon, and others are of him generally appearing to be exercising authority in relation to the company’s operations.
The photographs are quite inconsistent with what the father would have me believe, namely that he presently has no authority or responsibility in the company, but is only to be offered employment once these proceedings are concluded. I am deeply suspicious that the father has not told me the whole story.
However the mother has been able to show no income received by the father arising from any employment, nor does he appear to be in control of assets which would be consistent with any substantial income derived from employment. For instance, the father presently drives a motor vehicle which is said to be only worth $300.00.
Further, the father is obliged to seek the trustee in bankruptcy’s permission on each and every occasion that he proposes to travel from Australia. In that regard I note that his bankruptcy was for unsecured debts in the sum of about $60,000.00. If he was indeed the Chief Operating Officer of a major company, it is almost inconceivable that he would not chose to have his bankruptcy terminated, rather than face the considerable inconvenience of having a trustee appointed to his assets.
Further, precisely how the father is operating this allegedly substantial company remotely from a location in rural southern Queensland, is a little hard to fathom.
Ironically, I suspect that the answer probably lies in the photograph that was tendered of the father flanked by two bodyguards. It is simply nonsense, on the evidence before me, to suggest that the father is at some risk of personal harm, unless he is accompanied by bodyguards. I am comfortably satisfied that the purpose of that photograph was to project an image of the father as a powerful man. The father enjoys a physical appearance suggestive of a successful, senior businessman. He has a natural air of authority. He looks distinguished. This might be the very sort of image which a company may wish to project for its senior management, to instil confidence and faith in it from others. Certainly those are precisely the sorts of impressions I get from the images in the evidence before me.
The father was cross-examined by counsel for the mother on the basis that the company of which he allegedly is the Chief Operating Officer is a “pyramid scheme.” Whilst the father denied that was how the company had been explained to him, he did not explain what he understood a pyramid scheme to be. However I assume that it is either intended to refer to a ponzi scheme, or alternatively, a scheme which relies on an ever increasing army of people selling products, commissions from which flow back to those higher up the management tree.
Whilst the evidence does not permit me to conclude affirmatively, I would have to say that my impression of the photographs is of the father, or more precisely his image, being used for commercial purposes by a company, and him willingly going along with the ruse. They fall far short of persuading me that in fact there is substance behind the image. They seem to be public relations photographs.
Whilst the father’s failure to, in my view, properly explain his relationship with the company, does him no credit, it is quite another thing to say that he is therefore to be taken as a generally dishonest witness. I decline to draw that inference. However I will be somewhat cautious in acting upon his uncorroborated testimony.
Otherwise there are minor attacks on the father’s credit, and they may be adequately discussed when discussing the individual allegations.
ISSUE 1 – NATURE OF RELATIONSHIP BETWEEN CHILD AND EACH PARENT AND PARTNER
Leaving aside the allegations of abuse, ultimately this matter did not appear to be of any real controversy. Ms Q, the Family Report writer, opined that the child has a good and strong relationship with the mother, and that the child’s primary attachment lay largely with her.
As to the father, Ms Q opined that the child enjoyed a warm bond and a strong attachment with him. She thought that the bond between the child and the father was as equally warm and strong as it was with the mother. She said that the child’s relationship with the father was important and valuable, and thought that she was distressed when she could not see, or extend her time with, the father. From her observations, she concluded that the child adored the father, enjoyed being physically close with him, and was comfortable doing so.
I accept that evidence.
In her Family Report Ms Q commented upon observations between the child and the parties’ respective partners. I am satisfied that the child enjoys a good relationship with both Mr K and Mr G.
ISSUE 2 – RISK POSED BY PARTIES AND HOUSEHOLD, AND MEANS TO MITIGATE IT
Overview
This is the nub of the case. For her part, the mother contends that the father is an unacceptable risk of sexual harm to the child, with or without other alleged risks which she asserts he poses to her. On the other hand, during the course of the trial, the father appeared to assert that the mother poses such a risk of emotional harm to the child from alienating her from him, that it may justify a change in care, although ultimately he did not press for any such orders.
Risk posed by father
Overview
As I have indicated, the mother relied upon two species of risk spanning four allegations in relation to the father. The first type of risk is of sexual harm. The first allegation said to demonstrate that risk was what was described during the course of the trial as “the Black Panther Spray allegation,” the second was the vomiting episode allegations, and the third was what might conveniently be described as the masturbation allegation, which was only disclosed by the child the Saturday before the trial.
The second type of risk is said to arise from the father’s alleged use of illicit drugs.
The Black Panther Spray allegations
It will be recalled that the background to this allegation was that the child had been removed from the mother’s care on the evening of 10 May 2015, because police formed the view that the mother was so drunk as to be incapable of caring for her. The child then remained in the father’s care until Friday 15 May, by which time three things had occurred. The first was that on Monday 11 May, the father had indicated to the mother’s solicitor that the matter was being investigated by the Department of Child Safety (albeit he referred to it as “being investigated by Child Service.”).
The second is that subsequently the mother’s solicitors had demanded the return of the child, which the father refused to do. The third was that on 13 May, the mother commenced these proceedings.
All of these matters satisfy me that, as at 15 May, when the child returned to her care, the mother was anxious in relation to the prospect that the child’s living arrangements with her may be subject to closer scrutiny than had previously been the case.
The sequence of events then commences with the child allegedly sitting on the toilet, but placing her hand in front of her vagina whilst urinating, causing urine to go onto the floor and the toilet seat. The mother says that had not occurred before and the child was unable to explain why she did it.
The next event was when the mother then put the child in the shower, and repeated her questions to why she had placed her hand over her vagina. The child then allegedly told the mother “daddy had panther cream and put it on my bottom because I had fleas” or words to that effect. The mother says that the child, upon further questioning, specifically denied that it was “pink panther cream” and said that the cream had been applied because “my bottom is sore.” The mother then says she asked the child why her bottom was sore, and the child said “because daddy put cream in there and here on my lips too” or words to that effect. The mother says that at the same time the child motioned with her hands and fingers to indicate the internal and external parts of her vagina. She says that the child had never before used the word “lips” to describe her vagina, but had used other terms.
I should note that the child’s alleged reference to “fleas” on the Friday evening is apparently the only occasion that that aspect of the story has been ventilated by her.
The mother says that after the shower, the child complained that “my bottom is itchy and sore” and agreed to the mother applying “her magic cream” which apparently is the term which the mother traditionally uses to describe Bepanthen cream, which she commonly applied to the child.
Then, over the weekend, the mother says that the child told her that her “bottom” was itchy and sore on two or three occasions, and was holding her vagina with her hand. The mother says that the child requested her to stay with her when she went to the toilet “in case my bottom is sore.”
I have already detailed that, also during the course of the weekend, the mother and a friend googled “panther cream” and identified a possible connection with a men’s sex spray. A picture of it was printed out to which the child said “my daddy has that cream. I saw it on the floor and he showed me and sprayed it on his neck.” Interestingly, and in my view critically, there was no mention that this was the cream that had been applied to her bottom and vagina.
The mother then says (at paragraph 108 of her affidavit) that “I was unsure of what to do as a result of what [the child] had said to me so I called Bravehearts and they told me that I should take her to the doctor to be examined.” The mother did that on 19 May 2015, although not before her solicitors had sent an email to the father at 3:14 pm on that day. That email relevantly provides:
Our client has concerns with regard to some disclosures made by [the child] over the weekend following her time residing with you. We are instructed that on Friday evening [the child] advised our client that you had applied “pink panther cream” to her vagina “because she had fleas,” and, pointing to her vagina, indicated that the cream had been applied “in there” and “here on my lips too.” We are further instructed that [the child] continued to complain over the weekend that her “bottom” was itchy and sore, whilst pointing to or holding her vagina.
We are instructed that, prior to the weekend, [the child] had always referred to her vagina as her “front bottom” or “whinny” and our client had never previously heard her use the word “lips” to describe her vagina.
Our client requires you to advise:
·Whether you applied cream to [the child’s] vagina and why;
·What “pink panther cream” is, and the purpose for which it was used;
·Whether, [the child] did, in fact have fleas, and where she protracted (sic) those fleas from;
·Who was responsible for showering, dressing and assisting [the child] attend the toilet while she was in your care;
·Where [the child] adopted the vocabulary now used by her for her vagina.
Our client reserves her position at this stage, but will be acting protectively towards the best interests of [the child].
Under cover of that email, the father was served with the mother’s Initiating Application.
It will be immediately apparent that there is a significant inconsistency between what it appears the mother had instructed her solicitors, namely that the child had specifically mentioned “pink panther cream,” which the mother says in her affidavits was expressly denied by the child.
Given that inconsistency, I suggested to counsel for the mother that perhaps it may be necessary for his instructor to go into the witness box to give evidence about how it is that the reference to “pink panther cream” came to be in his email. For instance, it may have been possible that the solicitor misconstrued his instructions, and the reference to “pink” was a mistake. However the solicitor did not give evidence, and therefore I am satisfied that the most likely inference to be drawn from the mention of “pink” in the email of 3:14 pm on Tuesday 19 May, is that is what the mother had told the solicitor.
At 4:10 pm on 19 May, the mother took the child to her general medical practitioner, Dr R. Her notes were in evidence before me, and she also swore an affidavit and was cross-examined in relation to it.
Relevant parts of her notes include:
Ex-husband kidnapped [the child] last Monday…
…
Since that kidnapping, [the child] has been complaining about painful and itchy vagina. She had been riding on horses whilst with her dad.
She refused to be examined today. She said that the itchy and sore vagina started AFTER dad put some cream with a panther on it up her vagina. After we chatted for a while she agreed to be examined. But after she got up (sic) the bed, she still refused to undress and show me her vagina and vulva. I asked her if the cream dad put looked as the Bepanthen cream dad put up, and she said no. I asked [the child] if dad put the cream outside here weeney or outside, and she said in a shy manner: I don’t want to say because I promised not to say.” I ask: did you promise some thing (sic) this would be a secret,?” and she said “yes.”
…
Her affidavit essentially elaborated upon these notes, but clarifies that in fact an examination was able to be undertaken of the child’s vagina on that day, and that there were no signs of trauma, severe redness or discharge.
Under cross-examination Dr R confirmed that the word “kidnapped” was derived from the mother, and is what the mother told her.
However the doctor’s evidence became confusing in relation to whether or not she formed the view that the child had been subject to any inappropriate behaviour by the father. In part, I have formed the view that the doctor was concerned about that line of questioning because, as a mandatory notifier, had she formed that view, she was obliged to notify, but did not.
Another area of cross-examination related to the inconsistency between the mother’s recollection of what occurred during that consultation, and the doctor’s. Particularly:
·The mother says that the child identified that it was the father who had asked her to “keep it a secret,” whereas the doctor said that she could not recall that;
·The mother says that the doctor asked the child “was anything else put up there” to which the child replied in the affirmative, and when asked what it was, said “I don’t know but it was blue.” The child then denied that it was a finger. Again the doctor denied that she asked whether anything else was “put up there,” and said that if she had asked that, and the child had answered in the affirmative, and said that it was blue, she thought that she would have recalled that;
·The mother says that the doctor then asked the child “was it dark when it happened?” to which the child replied in the affirmative. Further, the mother says that the doctor then said “how do you know it was blue if it was dark at the time?” to which the child has said to have replied “it was dark outside but there was a light on so I could see.” Again under cross-examination the doctor denied any recollection of that conversation.
My conclusion is that the doctor became somewhat uncomfortable during this cross-examination, because she would have been aware that had that those conversations occurred, she would have had an obligation to notify the Department, and had not.
Under cross-examination the mother denied that she had made up any evidence to an object being “blue,” or that it was dark.
I am not satisfied that the conversation at the doctor’s rooms occurred as the mother says. Where there is divergence between the mother’s memory and the doctor’s, I prefer the latter, and where the doctor is of the view that she cannot recall whether or not something occurred, I am satisfied that it is unlikely that it did. Had matters of that kind been the subject of discussion in the doctor’s rooms, I am satisfied that they would have formed part of her notes, and likely would have required the doctor to make a notification to DoCS. That she did not do so, is significant in my mind.
On 22 May 2015 a notification was made to the Department by the mother. (The mother consented to be identified as being the notifier, and eventually unredacted versions of the notifications were supplied by the Department during the course of the trial). Relevant parts of the notification notes are as follows:
[The child] has returned from [the father’s] care in a traumatised state. [The child] has regressed behaviourally where she is currently clingingly. Emotional and “baby-ish,” [the child] has wet her pants (sic) several times, and has disclosed that she has a “sore whinny” (vagina). [The child] has further disclosed that “daddy put cream in my whinny (vagina),” and later disclosed that “daddy put a blue thing in my whinny (vagina).”
On 18 June 2015, the child underwent a 93A interview with Queensland Police. Relevant police records note that:
During the 93A interview, the victim child confirmed that her father has put cream on her vagina, however the victim child stated that the cream was applied by a wipe (no further details were supplied), and was applied due to the victim child saying that she had numerous mozzie bites. No criminal elements were identified.
In finalising the notification as “unfounded” police notes record as follows:
There is sufficient evidence to indicate the offence did not occur because … during the 93A interview with the victim child, no disclosures were made of a criminal nature (appears an incident action by the father has been blown out of context by [the mother]).
The evidence could not possibly persuade me, on the balance of probabilities, given the grave nature of the allegations, that the father sexually assaulted the child, either with Black Panther spray or with a blue object. There are simply too many inconsistencies in the child’s alleged reporting, especially between the mother’s recollection at Dr R’s rooms, and what the doctor was prepared to concede occurred. Particularly critical to my thinking in relation to this matter are the following problematic aspects of the evidence:
·On 15 May 2015 the child said the cream was applied because she had “fleas” but this has not thereafter been repeated by her;
·On 16 or 17 May 2015, the child, when shown a picture of the Black Panther spray, did not say that it had been applied to her;
·The mother’s instructions to her solicitor related to pink panther cream, not Black Panther spray;
·I do not accept that the child identified a blue object had been inserted in her vagina to Dr R.
However of course, the fact that I am not satisfied that the event occurred does not mean that I am thereby absolved from consideration of risk.
With the assistance of the parties during the course of the trial, I identified the following points as germane to the assessment of risk in relation to this matter:
Points suggesting risk
·The father did not immediately concede he had applied Bepanthen cream to the child’s groin area when initially challenged by mother’s solicitor’s email;
·The child refused to say if the father had put cream inside or outside of her vagina, and told Dr R she did not want to do so because she “promised [someone?] this would be a secret” (although this was in answer to a leading question);
·If the mother’s evidence on the point is accepted, then the child claimed that a blue object was inserted into her vagina, noting Dr R denies this was mentioned by the child. (However I do not accept that was said by the child, or even if it was, that the father so assaulted her);
·The child allegedly demonstrated changed urinary habits and general behaviour upon her return from father, which might be consistent with her having been sexually abused;
·The father’s evidence in relation to his employment seems shaky, at least in part, and hence his credibility in question.
Points suggesting no risk
·The mother’s solicitor’s first email to the father about the Black Panther Spray incident in fact referred to “pink panther cream” not “black panther spray” which is inconsistent with the mother’s subsequent evidence and claims;
·The appearance of the Black Panther Spray canister in evidence is arguably not consistent with the child’s subsequent descriptions of it;
·Even if, albeit falsely denied by the father, there was a misguided therapeutic application of the Black Panther Spray to the child’s vagina to ease irritation, that alone is not sexual abuse;
·The part of the child’s alleged story that the cream was applied because she had “fleas” does not appear to have been repeated by her after 15 May 2015;
·If the mother’s evidence is accepted, on the first opportunity the child had to identify Black Panther Spray as the cream applied to her vagina by the father, she did not do so, but only said she had seen him spray it on his neck;
·The mother’s credibility is under serious challenge, eg: allegedly misrepresenting police advice to her, arguably catastrophizing minor things, and consistently interpreting events in the most adverse way to the father;
·Neither Queensland Police nor DoCS, who both investigated the mother’s claims, took any action against the father, and indeed Queensland Police positively concluded that no offence had occurred, and DoCS concluded the child was safe in the father’s care;
·It seems rather convenient that this allegation was raised by the mother at a time she knew DoCS was likely investigating the events of 10 May 2015, and specifically her care of the child at that time.
Weighing those matters firmly, persuades me that there is little risk of direct sexual harm posed by the father.
Of course I accept that, in the event the father were to sexually abuse the child, it would be likely to cause her grave and long lived harm, however I assess the risk of him doing so, based upon the Black Panther spray allegations, is slight.
The vomiting episode
The mother seemed to see that there was some sexual connotation to the child’s story that whilst in the father’s care on some occasion, he vomited “everywhere” and went into the shower to clean himself, and insisted upon the child assisting him. The father denies that any such episode occurred.
I accept the father’s evidence in this respect. I am well satisfied that no such event occurred.
The masturbation allegation
On the evening of Saturday 7 April 2018, being the weekend prior to the commencement of the trial, the mother says that she had a conversation, whilst putting the child to bed, who was complaining of some pain like a burning sensation. They then had a conversation on more general terms in relation to maintaining vaginal health. The mother’s affidavit filed 9 April 2018 then continues:
5. [The child] then asked me “do you have your whinny looked at?” I said “yes. I do this every year as its important its as important as your eyes and your teeth to look after. It is something we all have to do, except for boys, because they have a willie.”
6. [The child] then said, “yea mummy and aren’t the willies squishy to begin with.” She made the hand/finger motion of squishing something between her fingers. She put her hand up and was squeezing like she was squeezing a sponge up and down. She then said yea and they look all veiny” (she used these exact words). She then said “daddy’s are really hairy there too.” I said “oh, how do you know that?” After pausing for about 10-15 seconds or so “I remember seeing daddy’s when we lived at [D Street].”
7. [The child] was aged four at the time of our separation and turned five at the end of the month after the father left her home.
8. I was immediately concerned and remained concerned about [the child’s] use of the words “squishy” and “veiny” and her hand motion she used when she was speaking to me in the conversation referred to. The hand movement she used did have up and down motion to it as well as squeezing of her fingers.”
In cross-examination the mother corrected an aspect of that affidavit, in that in paragraph 6, the word “daddy’s” where it first appears should in fact have been “daddies.” That is important because, as the mother conceded, she understood the child to be talking in the plural, rather than identifying her father specifically.
Plainly this evidence again would be insufficient to establish, on the balance of probabilities, that the father had, in some respect, sexually abused the child. In any event the father denies that there was ever an occasion when the child could have seen his penis whilst he was living with the mother. However again it is the assessment of risk which follows from the allegation which needs to be undertaken.
With the assistance of the parties, again I identified the following points suggesting the presence or absence of risk as follows:
Points suggesting risk
·If the mother’s evidence on this point is accepted, it appears the child has firstly, seen and/or felt the father’s flaccid penis, secondly, may have seen the father’s erect or semi-erect penis, and thirdly, may have manipulated and perhaps masturbated it;
·If the mother’s evidence on this point is accepted, it is possible the child has been engaged in discussion about, or seen, more than one adult male’s genital area (“daddies” and “they”);
·The child’s alleged pause of 10-15 seconds might be suggestive of untruthfulness, or at least concealment of the truth.
Points suggesting no risk
·The mother concedes the child, up until she was about 2½ -3, saw the father’s penis whilst showering with him, in wholly innocent circumstances;
·Although the father denies it, the child may have touched his penis whilst co-showering;
·The child’s only disclosure connecting the father with this claim is during the period of cohabitation, and hence consistent with innocent co-showering;
·The child’s use of the word “veiny” is unusual, and might suggest the mother has invented this alleged disclosure, or if not, that the child has picked up the word from other sources, or been coached.
Weighing those matters, I am satisfied that taken in isolation, the child’s disclosures to the mother, even if they occurred, (as to which I am highly doubtful) would nonetheless suggest only some very slight risk of sexual harm posed to her by the father.
Father’s alleged use of illicit drugs
It has to be said that this allegation, which was not abandoned by the mother during the trial, tends to paint her in something of a desperate light. In her trial affidavit the mother supports this allegation by reference to the following material:
·That in mid to late 2016, she observed the father’s appearance had deteriorated, in that he looked unkempt, his hair was longer than usual, and he was unshaven. This was different to his appearance during the course of the relationship;
·In late October 2016, after a changeover at the mother’s house, a friend observed the father, and told the mother, that “he was missing a number of teeth on the top of either side of his mouth.” The mother enquired whether it was merely a missing cap, which the father had previously lost on another occasion, but the friend was apparently adamant that “there were several teeth missing in his mouth.” Other than this friend’s apparent observation, there is nothing to suggest that the father is missing teeth, and certainly did not appear to be missing teeth in the trial before me;
·In about November 2016, the child related to the mother that she and the father had a conversation about the dangers of sharing needles. The father denies that he had any such conversation with the child, but thinks he may have had a conversation with her about the dangers of needles on the beach;
·Also in November 2016, the mother requested the father undertake drug testing, to which the father did not reply, and when that request was repeated in December 2017, again no response was obtained.
This evidence falls pitifully short of being sufficient to ground a finding that the father has engaged in illicit drug use, and falls equally short of being able to establish that the father poses some risk of harm to the child when she is in his care from drug use.
Cumulative risk
Of course, ultimately it is not the risks arising from certain events in isolation which need to be considered, but rather the totality of the risk which the father poses to the child if she is in his care. Whilst accepting that, if the father were to sexually abuse the child, there is a significant risk of long term and substantial harm to the child, I am satisfied that the prospect of him so acting is slight. Likewise, although the risk of harm to the child from any illicit drug use by the father conceivably may not be as grave as harm flowing from sexual assault, again I assess the prospect of the father being under the influence of illicit drugs whilst the child is in care as slight.
The father does not pose an unacceptable risk of harm to the child, nor does he pose a risk of harm of a magnitude which could only be adequately mitigated by strict supervision.
ISSUE 3 – BENEFIT OF MEANINGFUL RELATIONSHIP WITH PARENTS
Ultimately, leaving aside the mother’s allegation that the father posed an unacceptable risk or harm to the child, this issue was not controversial. Ms Q’s relatively unchallenged evidence was that the child would benefit from a continuation of her relationship with the father, and indeed the child presently cannot understand why she is not seeing him more, and is distressed after spending time with the father, because she wishes to spend more time with him. She further identified that the child would benefit from engagement with the extended parental family, and particularly her three half siblings, who are important to her self-identity. She said that sibling relationships are particularly important, because they generally survive the termination of the parental relationship after the parent dies.
As to the mother’s relationship, Ms Q’s unchallenged evidence was the child would benefit from a continuation of that relationship, and that the child loves her and shares many things in her life with her. She conceded that the child obtained stability from the mother, who has always been her primary care giver, and that the child derives nurture, comfort and support from that care.
I accept all of that evidence.
ISSUE 4 – WOULD PARENTS FACILITATE RELATIONSHIP
As the way the parties conducted their cases evolved, this issue largely fell away. That was because although at one stage the father seemed to foreshadow bringing an application for the child to move into his primary care, that did not in fact eventuate. Therefore even if I was satisfied that the mother is unlikely to facilitate a meaningful relationship between the child and the father, given that the father concedes that the child should nonetheless primarily live with the mother, it has little impact upon the outcome of this case.
At paragraph 64 of her written submissions, counsel for the Independent Children's Lawyer correctly identified the following matters as demonstrating that, in fact, the mother has in the past facilitated a relationship between the child and father:
·The mother has consistently made the child available to the father in accordance with the current orders, although she disagrees with them;
·The mother has, on the whole, facilitated phone time with the father every day, even though it must sometimes be inconvenient and difficult for her to do that;
·The mother encourages the relationship between the child and the father in ways such as assisting the child to bake a cake for him, if the child expresses a desire to do so, and assists the child in selecting gifts for the father;
·In cross-examination the mother indicated that she will accept the Court’s direction and opinion as to the outcome of these proceedings.
I have little doubt that the mother has had a difficult journey, post-separation, in relation to the father. It must have been difficult for her to come to terms with the father’s sexual activities, or at least interests, which had been concealed from her during the relationship, and it is obvious from her communication with him immediately post-separation, and for about a year thereafter, that she was very, very unhappy with his choices in that respect. However I am satisfied that, with the passage of time, the mother has indeed, as the Independent Children's Lawyer submits, demonstrated that she has nonetheless been able to facilitate a meaningful relationship between the child and the father.
As to the father’s ability to facilitate a relationship between the child and mother, again the Independent Children's Lawyer identifies that he did tell the Family Report Writer that the child was best placed with the mother (so long as she was not drunk) and, notwithstanding some wavering during the course of these proceedings, has always sought to have the orders that the child live with the mother.
ISSUE 5 – LIKELY IMPACT OF PARTIES’ PROPOSALS ON CHILD
Ms Q’s evidence was that there were considerable benefits to the child of the father’s proposal in that, at the moment, the restriction of day time only, means that the child only gets to spend a few hours with him, and does not get to often experience him in his home environment, because the time taken to travel to and from the mother’s home does not permit it. She emphasised the benefits of overnight time were particularly the increase of the amount of quality time that the father and child would be able to spend together, whereas, at present, time was only able to be spent in places other than the father’s home. She said that it was generally better for a child to experience a parent in their home environment. She thought that spending time with the child at a park or an amusement venue was a slightly artificial environment. That said, she said that if there was no overnight time, a meaningful relationship could still exist between the father and the child, but it would not be an experience of ordinary life.
In answer to the question of whether the child was presently querying why she could only spend day time with the father, Ms Q was of the opinion that the child was already resenting that, and that resentment would likely grow into the future. She thought that there was some risk that she would attribute the cause of that as being the mother, and there would be the prospect of rebellious and resentful behaviour by the child towards the mother.
Ms Q was not without some criticism of the father’s proposal, in that she thought that the Sunday return to the mother’s care needed to be practically possible.
Turning to the mother’s proposal, which was primarily that the child should spend no time with the father (notwithstanding that she was presently spending unsupervised day time) Ms Q thought that the likely short-term effect would be that the child would become quite angry and distressed. She thought that it was likely that she would direct that anger towards the mother. Whilst conceding that the longer term impact of the mother’s primary proposal on the child was somewhat speculative, she thought that there was a real risk, based upon her experience of other children, that if the child does not understand the reasons for the lack of contact with the other parent, they tend to blame the parent with whom they are residing. They can come to believe that the residential parent has removed the other parent from their life, and that the prospects of her so forming that belief increased as she got older.
She further said that if the child were to become aware that the reason why she was not seeing the father was because of something that she had said, there was a prospect that she would come to blame herself for the lack of relationship.
Ms Q’s further evidence was that children tend to develop best if they have relationships with both their parents, which assists the child’s development of their own identity. Conversely, she said that if a child only has contact with one parent, that can impact adversely on their sense of identity.
Asked how that may play out, she indicated that she had seen extreme examples in her professional career, where it affected a child’s school work and emotional health. Long term, it could impact adversely upon the child’s capacity to formulate and maintain adult relationships, and even employment, although she thought that was less likely.
As to the prospect of supervision of the father’s time by one of his adult children, Ms Q thought that would adversely impact on the relationship between the father and the child, because her experience of him would always be in group situation, where family things were happening, which was not a natural parent/child experience, especially if there were overnights involved.
As to the prospect that perhaps it would remain alternate Sunday time, whilst Ms Q was of the view that would be sufficient to maintain a relationship between the father and child, she said it would not see that relationship strengthen or grow. She though that there would be a risk that the child could rebel on a day time only regime, and indeed thought the child was already doing so.
I accept all of that evidence.
ISSUE 6 – IS PARTIES’ COMMUNICATION ABLE TO SUPPORT EQUAL SHARED PARENTAL RESPONSIBILITY OR EQUAL SHARED PARENTAL RESPONSIBILITY WITH OBLIGATION TO CONSULT
Ms Q’s recommendation was that there should be an order for equal shared parental responsibility, and that was sought by both the father and the Independent Children's Lawyer. However the difficulty is that the parties have not, in fact, been able to freely communicate since separation, although they have been able to agree about the changing of the child’s school, and the obtaining of a passport for her.
Plainly these parties have had an acrimonious separation, or more particularly, the aftermath of the separation has been acrimonious. However I am satisfied that in relation to major long term issues, the parties can discipline themselves to communicate in a child focussed way, as they have demonstrated in the past.
SECTION 60CC CONSIDERATIONS
It will be appreciated that I have already addressed both of the primary considerations and a number of the additional considerations. Nonetheless I make the following further observations.
The child is only eight years of age, and has told the father that she wishes to spend more time with him, and even as recently as 24 December 2017, asked the mother to be able to do so. Ms Q’s unchallenged evidence was that the child appears to be expressing confusion as to why she is not able to spend more time with the father, and is resentful of the limitations on time.
However whilst I accept that the child does wish to spend more time with the father, given her age, I give those wishes only slight weight.
I am satisfied that the child has a good relationship both with the mother’s partner, and with the father’s partner. I am also satisfied that the child has an excellent relationship with her three half siblings on her father’s side, and that those relationships are all important to her.
The mother complains that, on occasion, the father returns the child early to her, in response to which the father says that he does so because given that he cannot take the child to his home, the activities frequently tire her, and he has nowhere to take her for a rest.
I am satisfied that the father’s early returns are not indicative of him not wanting to spend time with the child.
The mother also complains that the father has on occasion cancelled visits with the child. The Independent Children's Lawyer has calculated that this has occurred on 19 occasions (according to the mother’s records), which is 17 per cent of visits. Given that, on occasion, the father has had to travel overseas, and on other occasions has had motor vehicle trouble and the like, I am satisfied that this is not indicative of a father who does not wish to have a relationship with a child. Further, as the Independent Children's Lawyer notes, generally speaking the father has nonetheless called the child and spoken with her each day, and during those calls has helped with her homework and read to her.
The mother complains that the father has only paid minimal child support since separation, to which the father says he pays child support as determined by the Child Support Authority. The Independent Children's Lawyer correctly identifies that in fact there has been no formal assessment of the father, to which the mother says she has not made application for an assessment, as the father is ostensibly unemployed and bankrupt.
That said, the Independent Children's Lawyer correctly identifies that the father does incur considerable costs associated with him spending time with the child, including his travel costs and the costs of the entertainment to which he takes the child.
I am satisfied that the father’s financial support of the child is indeed reasonable given his circumstances.
It takes approximately two and three quarter hours to drive between the parties’ residences. There is therefore practical difficult and expense of the child spending time with both parents.
The mother is concerned that the father’s sexual interests may, if the child were exposed to them, in some way harm her. For instance she was troubled that the child may inadvertently access websites which the father accesses on his computer.
However the father’s evidence is that he no longer accesses those websites because he is engaged in a long-term monogamous relationship with Mr G. Further, he and Mr G live on a rural property, and both have an interest in doing things about the home.
I therefore reject the suggestion that the father’s lifestyle is in some way unusual, or otherwise likely to pose a risk to the child.
Whilst there have been allegations of family violence, and indeed the father applied for a protection order against the mother, this is not a case which is informed by any historical family violence. There is no contention that either party poses a risk of family violence to the other or to the child if she is in their care.
PARENTAL RESPONSIBILITY
Although the parties have some difficulty in freely communicating, I am satisfied that they can communicate sufficiently to discharge their obligations under s 65DAC, were an order for equal shared parental responsibility to be made.
As to whether such an order is in the best interest of the child, I am satisfied that it is. Both of these parties have much to offer in relation to joint decision making about the child’s future, and the child is likely to benefit from knowing that both of her parents have an interest, and a responsibility for, decision making in relation to her.
I am satisfied that an order for equal shared parental responsibility is in the best interest of the child, and will make it.
WITH WHOM SHOULD CHILD LIVE
By virtue of having made an order for equal shared parental responsibility, it is incumbent upon me to then consider whether orders for equal time, or substantial and significant time, would be in the best interest of the child, and if so, are reasonably practicable.
Whilst in theory, if the parties lived close by, an order for equal time may be in the best interests of this child, they do not do so. It is simply not reasonably practicable for an order for equal time to be made in this case; the parties live too far away from each other.
Likewise, if equal time were not appropriate, then an order for substantial and significant time would almost certainly be in the child’s best interests, however again it is not reasonably practicable, because of the distance between the households. It is inconceivable that the father could take the child to and from school on any weekday, and absent that, there is no other way in which orders for substantial and significant time, as defined in s 65DAA(3), could be fashioned so as to involve the father in the child’s daily routine.
In any event the father does not seek orders either for equal time, or substantial and significant time, but rather concedes that the child should remain primarily resident with the mother. I am satisfied that indeed such an order is, in the circumstances of this case, in the child’s best interests, and will make it.
CHILD’S TIME WITH FATHER
As has been seen, this was the primary battleground of the parties at trial. The mother contended that the father should spend no time with the child because he posed an unacceptable risk of harm to her. I have rejected that contention for the reasons I have already given. The mother then proposed cascading alternatives depending upon the findings made. As explained at paragraph 2 of her case outline filed 3 April 2018, those orders were “either for supervised time or that the current orders continue with certain injunctions in place to protect [the child] from harm.”
The justification for supervised time was explained by counsel for the mother as again lying in the asserted risks of harm which the father posed to the child. I am not satisfied that he poses any risk of harm of a magnitude such that supervision of his time is required.
That then brings into focus whether or not the current orders, for day time only, should persist. In the course of his oral submissions, I inquired of counsel for the mother the basis for the continuation of those orders, and particularly pointed out that, given that they were the product of an interim hearing, inevitably they must have been a compromise between the alleged risk which the father posed on the one hand, with the benefit to the child of maintaining a meaningful relationship with him, on the other. The difficulty which inevitably occurs in many interim proceedings is that a detailed risk analysis cannot occur, and therefore the court acts protectively and conservatively.
However a trial has now been conducted. There is no justification for the mother’s claims that the father poses a risk of harm to the child of a sexual or any other nature. There is therefore no basis for restricting the father’s time to only day time, and to preclude it from being overnight time.
The advantages of the orders proposed by the Independent Children's Lawyer and father is that they permit alternate weekend time, including overnights, which therefore means that the child’s experience of her father and his life will be able to be primarily experienced at his home. Further, it will enable the child and the father to have longer periods of time together during school holidays, whether at the father’s home or elsewhere. On the other hand, there is a reduction in the amount of time which the father will spend with the child by telephone, and I am satisfied that such an order does properly respond to the increased physical face-to-face time which the father will spend with the child.
I am therefore satisfied that the orders as proposed by the Independent Children's Lawyer and father are in the child’s best interests, and will make them.
There is one further issue which needs to be addressed. The child is invited to attend as a flower girl at her sister’s wedding on Saturday 25 August 2018. The mother opposes the child being able to attend, again because she says that the father poses an unacceptable risk of harm to her, even in that scenario. Obviously I am not so satisfied; on the contrary, I am firmly convinced that attending such an occasion, in such a capacity, is likely to be a wonderful experience, and indelibly delightful memory, for an eight year old girl. There will therefore be, in addition to the orders sought by the father and the Independent Children's Lawyer, an order permitting the child to attend her sister’s wedding.
OTHER ORDERS
Otherwise I am satisfied that the orders proposed by the Independent Children's Lawyer are in the child’s best interest, and will make them.
CONCLUSION
For these reasons there will be orders as set out at the commencement of this judgment.
I certify that the preceding one hundred and eighty-seven (187) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 30 July 2018.
Associate:
Date: 30 July 2018
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