Martin and Martin

FAMILY COURT OF AUSTRALIA

MARTIN & MARTIN

[2007] FamCA 138

FAMILY LAW - CHILD ABUSE - Supervised contact
FAMILY LAW - CHILDREN - With whom a child shall live
FAMILY LAW - CHILDREN - Family violence - Risk

APPLICANT:

Mr Martin

RESPONDENT:

Mrs Martin

FILE NUMBER:

SYF

3401

2003

DATE DELIVERED:

2 March 2007

PLACE DELIVERED:

Sydney

JUDGMENT OF:

Justice Lawrie

HEARING DATE:

21, 22, 23, 24, 25, 28, 29 and 30 November 2005 and 1, 2 and 7 December 2005

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Mr Conditsis

COUNSEL FOR THE RESPONDENT:

Ms Hausman

Orders

That both parties do all things to ensure that the child J, born in June 1997 (hereinafter called “the child”) live with the wife.
That the wife have sole parental responsibility for the child.
That both parties ensure that the child spends time with the husband for at least:
(a)each alternate weekend during school term
(b)for each school holiday period other than the Christmas New Year holidays for one period starting at 9.00 am on day one and finishing at 5.00 pm on day five as agreed between the parties or failing agreement for the period when day one is the next day after the last day of school of each term and for three such periods separated by at least one week during the Christmas New Year Holidays
(c)for three hours on the child’s birthday and the child’s Greek name day
(d)for three hours on the father’s Greek name day
(e)on the Father’s Day weekend if it is not a regular weekend when the child would spend time with the father but the child is to not spend the Mother’s Day weekend with the father even if it is a regular weekend when the child would normally spend time with the father
(f)from 12 noon on Christmas Eve to 11.00 am on Christmas Day
(g)for such other times as the parties may agree.
Any time spent with the father must be in the presence of any of the following:
(a)       the paternal grandparents
(b)       Mr or Mrs D
(c)       Mr G or Ms C
(d)       a person approved by the wife in writing.
During time that the child is with the father overnight the father is not to share a bedroom with the child and the person from the list in Order 4 in whose presence the time is being spent must be at the place where the child is spending the night.
The father may telephone the child at 7.00 pm if the child has not spent any part of that day with him and the mother may telephone the child at 7.00 pm if the child has not spent any part of that day with her.
That the parties do all things to ensure that the child have confidential therapy with Dr P or his nominee and that they share the costs of the therapy.
Pursuant to Section 65DA(2) and Section 62B, the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties adjust to and comply with an Order are set out in the Fact Sheet attached hereto and these particulars are included in these Orders.
The exhibits may be returned upon the usual undertakings.
All material produced under subpoena be returned to the party who produced it.
The matter be removed from the pending cases list.

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYF 3401 of 2003

Mr Martin

Applicant

And

Mrs Martin

Respondent

REASONS FOR JUDGMENT

This matter concerned the only child of a marriage J, born in June 1997.
The father was born in October 1964. He is a café employee. The mother was born in March 1976. She is a retailer. The father’s heritage is Greek Orthodox, the mother’s is Lebanese Christian. They met in 1993 at a coffee shop where the father was working. They married in September 1995. It was the first marriage for both of them, and also the first serious relationship for both of them. For religious reasons they did not cohabit before marriage. The mother was 19, innocent and unsophisticated, living with her family, the youngest child of their family. The father was 31, but was also unsophisticated. He had not had a serious relationship with anyone, before according to his father. He had been dux of his school, and religious.
Their only living child, J, was born in June 1997. His pregnancy was not planned. They also conceived another child, but the mother suffered a miscarriage not long after her father died unexpectedly at a period of the couple’s lives which was also very stressful financially.
The parties had some short separations during the course of the marriage and finally separated physically in November 2002 when the husband moved from the former matrimonial home to reside with his parents. The wife shortly thereafter went to live with her mother with the child. There seems to have been some hope that their problems might be resolved, but by late February the wife informed the husband that the marriage was over.
The contact between the father and the child continued in the presence of the wife until 11 April 2003 but since then has occurred out of her presence under supervision.

Competing Applications

The wife sought that the child live with her and she have sole responsibility for the day to day care, welfare and development of the child whilst he is with her. She sought that the husband have supervised contact each alternate weekend, during school term, three hours on his birthday, 10.00 am to 5.00 pm on Father’s Day (no contact Mother’s Day) 12 noon Christmas Eve to 12 noon Christmas Day, school holiday contact as recommended by the independent expert. That the contact be supervised by Mr or Mrs D, Mr G, the paternal grandparents or Ms C. That overnight contact be at the homes of the supervisors, the husband not to share a bedroom with the child, that he ensure that the child attends all extra curricular activities including soccer, husband to advise mother where the child will be overnight and where he is to be collected. That the father have reasonable telephone contact each day at 7.00 pm. She seeks that both be restrained from denigrating each other, or discussing proceedings, and that the child have long term therapy with

Dr P with the parents to share costs of therapy.
The father sought week about joint residence.

Relevant Law

The philosophy of the Family Law Act in respect of children is set out in various sections.
The most important of all the sections is Section 60CA, which provides that in deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration. This makes it clear that tailoring the situation to best suit the child which takes priority, rather than any consideration of matters such as equality of time for the parents for example.
What is meant by the best interests of the child? The philosophy of the children’s provisions of the Act are set out in subsection 60B(1):
“60B (1) The objects of this Part are to ensure that the best interests of the 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 subject 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.”

Subsection 60B(2) provides:
“(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).
Subsection 60B(3) provides:
“(3) For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a)to maintain a connection with that culture; and

(b)to have the support, opportunity and encouragement necessary:
(i)to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii)to develop a positive appreciation of that culture.”

This is not significant in this case as the children have no aboriginal or Torres Strait heritage and these issues will not be referred to further.

The checklist of things that have to be looked at in working out what are in the child’s best interest are set out in Subsection 60CC which provides:
“60CC (1) Subject to subsection (5), in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2) The primary considerations are:
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
Additional considerations
(3) Additional considerations are:
(a)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
(b)the nature of the relationship of the child with:
(i)     each of the child’s parents; and
(ii)other persons (including any grandparent or other relative of the child);
(c)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
(d)the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i)     either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
(f)the capacity of:
(i)each of the child’s parents; and
(ii)any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
(h)[not quoted]
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
(j)any family violence involving the child or a member of the child’s family;
(k)any family violence order that applies to the child or a member of the child’s family, if:
(i)     the order is a final order; or
(ii)     the making of the order was contested by a person;
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m)any other fact or circumstance that the court thinks is relevant.”
In examining these questions sections 60CC(4) and 60CC(4A) come into play which provide that the court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent, and in particular, the extent to which each of the child’s parents has taken or failed to take the opportunity to participate in making decisions about major long term issues in relation to the child, spend time with the child, communicate with the child, and way in which they have either involved or not involved the other parent in those activities. The court must look at what has happened since the separation of the parents.
How much of the time the children should live with each parent is one question, the other is how much should the parents be involved in the decision making in respect of the children, or what is referred to as parental responsibility.
The section covering parental responsibility and how it is to be shared is Section 61DA of the Act which provides:
“ (1) When making a parenting order in relation to a child, 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.
Note:The presumption provided for in this subsection is a presumption that relates solely to the allocation of parental responsibility for a child as defined in section 61B. It does not provide for a presumption about the amount of time the child spends with each of the parents (this issue is dealt with in section 65DAA).
(2) The presumption does not apply[1] 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:
(a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b) family violence.

(3) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4) The presumption may be rebutted[2] by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.”

[1] Emphasis supplied

[2] Emphasis supplied

Central Issues

There are questions in this case about whether the father has abused the child, and whether there has been family violence. 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 child abuse or family violence the presumption of shared parental responsibility does not apply.
What is meant by “family violence”? This does not only mean there has been hitting and punching or other types of physical violence. There can be physical, sexual and psychological abuse of children and adults in a family. Just as in terrorism the fear which is caused by some behaviour is just as real an affliction as the act which has given rise to the fear. Family violence is defined in the Act in S.4 as follows:
“family violence means conduct, whether actual or threatened, by a person towards, or towards the property of, a member of the person’s family that causes that or any other member of the person’s family to fear for, or to be apprehensive about, his or her personal well being or safety.”
The Family Court website, through its mediation resources, lists some of the vast amount of research material on the impact on spouses and children of such behaviour, including behaviour of domestic domineering, financial control and denigration[3]. Simply because no physical violence has been involved does not mean that there has been no behaviour from which the children need to be protected. Exposure to arguing between parents who have been seen by the children to have at times resorted to violence can be extremely distressing. Hearing one parent denigrate another is also very destructive of a child’s self esteem. Children will learn at school if they have not already become aware that they are the product of two people with a mixture of characteristics from the DNA of both parents. If a parent denigrates the other and the child is aware of it, the child is being given the message, “half of you is bad or dirty or stupid” or whatever denigrating things have been said. If both parents denigrate the other, the child has the message that there is nothing good about him.
[3] Emphasis supplied
This is a case where there is also concern about inappropriate behaviour which could amount to abuse. The principles governing cases where allegations of sexual abuse have been made are set out in the case of M and M, a decision of the High Court reported in 166 CLR 69 which is also reported in (1988) FLC ¶91-979:
“Central to the case are the wife's allegations that the father has sexually abused the child and that the child's welfare will be put at further risk. At first instance Gun J. was not satisfied that the father had so abused the child. On the other hand, he was not satisfied that the father had not so abused the child. He considered that there was a possibility that the child had been sexually abused by the husband and that in the interests of the child he should eliminate the risk of such abuse by denying access to the husband. He also rejected the suggestion that the husband should have supervised access…
It seems that, at the hearing before Gun J, sexual abuse of the child was the one ground relied on as justifying deprivation of the husband's access. Otherwise there appears to have been no suggestion of difficulty in the relationship between the husband and the daughter. The husband denied that there had been sexual abuse. The trial Judge found nothing in his demeanour and in his answers to questions to suggest that he was not telling the truth. …
The critical passage in the primary Judge's judgment dealing with the standard of proof is as follows:
"[M]y task is to evaluate the evidence adduced and decide whether or not I am satisfied on the balance of probabilities that the husband has sexually abused the child. If I am satisfied that the husband did sexually abuse the child, I would discharge the order for access. If I am not satisfied on the balance of probabilities that the husband has sexually abused the child but I am not sure that he did not do so, in other words if I have lingering doubts, it is my view that I should discharge the order for access on the ground that no risk or possible risk should be taken which would endanger the welfare of the child.”
... I do not consider that I am in a position to say that the husband did not sexually abuse the child. Indeed, the aggregate effect of the evidence of the wife, Constable A and Miss F is such as to raise in my mind the possibility that the child has been sexually abused by the husband.”
... In proceedings under Pt VII of the Act in relation to a child, the Court is enjoined to "regard the welfare of the child as the paramount consideration" (sec. 60D). The paramountcy of this consideration in proceedings for custody or access is preserved by sec. 64(1). The consequence is that the ultimate and paramount issue to be decided in proceedings for custody of, or access to, a child is whether the making of the order sought is in the interests of the welfare of the child. The fact that the proceedings involve an allegation that the child has been sexually abused by the parent who seeks custody or access does not alter the paramount and ultimate issue which the Court has to determine, though the Court's findings on the disputed allegation of sexual abuse will naturally have an important, perhaps a decisive, impact on the resolution of that issue.
But it is a mistake to think that the Family Court is under the same duty to resolve in a definitive way the disputed allegation of sexual abuse as a court exercising criminal jurisdiction would be if it were trying the party for a criminal offence. Proceedings for custody or access are not disputes inter partes in the ordinary sense of that expression: Reynolds v. Reynolds (1973) 47 A.L.J.R. 499: 1 A.L.R. 318: McKee v McKee (1951) A.C. 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) 162 C.L.R. 447 at pp. 450, 458, 462, 463-464.
Viewed in this setting, the resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the Court's determination of what is in the best interests of the child. The Family Court's consideration of the paramount issue which it is enjoined to decide cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse. The Family Court's wide-ranging discretion to decide what is in the child's best interests cannot be qualified by requiring the Court to try the case as if it were no more than a contest between the parents to be decided solely by reference to the acceptance or rejection of the allegation of sexual abuse on the balance of probabilities.

In considering an allegation of sexual abuse, the Court should not make a positive finding that the allegation is true unless the Court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v Briginshaw (1938) 60 C.L.R. 336 at p. 362. There Dixon J. said:
"The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences.”
His Honour's remarks have a direct application to an allegation that a parent has sexually abused a child, an allegation which is often easy to make, but difficult to refute. It does not follow that if an allegation of sexual abuse has not been made out, according to the civil onus as stated in Briginshaw, that conclusion determines the wider issue which confronts the Court when it is called upon to decide what is in the best interest of the child.
... In resolving the wider issue the Court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assessing the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child's welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access. In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access. Even in such a case, however, there may be a risk of disturbance to a child who is compulsorily brought into contact with a parent who has sexually abused her or whom the child believes to have sexually abused her. But that is not the issue in this case.
Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. The degree of risk has been described as a "risk of serious harm" (A. v A. (1976) V.R. 298 at p. 300), "an element of risk" or "an appreciable risk" (M and M (1987) FLC 91-830 at pp. 76,240-76,242; (1987) 11 Fam. L.R.765 at pp. 770 and 771 respectively), "a real possibility" (B and B [Access] (1986) FLC 91-758 at p. 75,545), a "real risk" (Leveque v. Leveque (1983) 54 B.C.L.R. 164 at p. 167), and an "unacceptable risk" (In re F. (a minor) (1987) 1 W.L.R. 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.[4]
[4] Emphasis supplied.

Having said all that nonetheless there does need to be kept in mind that this was bitterly fought litigation between parties who, before the concerns about the “zabro” touching by the father, had all got on well together. It is not a case where the separation came about after there had been a history of violence and denigration during the marriage. Matters have escalated in the context of two extended families which have both been loyally trying to support an adult “child” of the marriage. In that context the husband has denigrated the wife and her family.
There is a good reason why the Act has long been concerned to try to avoid litigation as is set out above. A factor in determining the outcome is:
“(1) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;”
Litigation is not only very costly in money terms (and enough money has been spent on this case probably to buy the child a house and put him through any University course) but it is very costly in emotional terms. It is a real war and it has long been recognised that can cause what has been popularly called “litigation neurosis”, where parties are hypervigilant and alert to see ammunition for the litigation in all the actions of the other parties. No-one can relax. Everything you do “may be used in evidence against you”. Problems that happen in a normal family that get taken in their stride by couples, get turned into “issues” in the litigation, recorded in affidavits, proved by subpoenaed materials, and so forth. The litigation causes its own set of problems because members of most families will come to the defence of one of their own, and some will believe that “attack is the best method of defence”. People who got on well, who may have been genuinely fond of each other, find themselves on opposite sides in a civil war, and feel betrayed. Insults fly as part of the battle, and are duly recorded. All of this has happened in this case. It is also a case in which there is a very high level of involvement by the husband’s father. This had been the case during the parties’ cohabitation when the wife discussed marital matters with her father-in-law who is a medical practitioner. There was financial interaction where the husband’s family lent money for enterprises which failed and which ended with the parties in significant debt to the husband’s family. This adds a further dimension of complexity to the matter. The husband’s father’s involvement was like that of a party. He has funded the litigation for the husband. He presented as the strategist of the litigation in the way he behaved in court, where he was involved to an unusually high degree. This adds to the husband’s need to justify his actions, and also infantilises him because he is not acting as an independent adult. When people are young and inexperienced it is difficult for them to see things in perspective. When people of any age are emotionally involved in a fight, whether as a participant or a supportive family member, they loose objectivity. When it is a situation where there is also a fear of loosing contact with a child or a grandchild, this is even more intensely emotional than a fight over money for example.
In one area of the case I unfortunately came to the conclusion that the grandfather had played the decisive role in deciding what was appropriate, and that his evidence about the matter given in the court did not accurately depict what had occurred. This was the question of the schools recommendation for the child to see an independent counsellor. In relation to the evidence on that matter I accepted the evidence of the school witnesses which contradicted the claims of the grandfather and father. His manner of giving his version of events was more concerned with self serving promotion of himself and his son to try to advantage them in the litigation, than in focussing on what was necessary for the child’s benefit. I agree with the comment of Dr M that:
“The fact that the father and more significantly the father’s father, would not agree to [the child] being referred independently for psychological help causes me to question their ability to make an independent decision in [the child’s] best interest, out of their concern that it may be used in the current Family Court action. While they report that [the child] showed no disturbed behaviour when with them, the concerns officially raised by the school would alert an appropriately involved and concerned parent to the need to provide the child with psychological assistance. The mother appears to have accepted the principal’s recommendations and has attempted to persuade the father and his family to agree, without success.”[5]
[5] Dr M report p 14-1526 June 2005
The father has acknowledged that he had called the wife and her family “filthy Lebs”. He admitted that he had said words to the effect of, “You’re all filthy Lebs. You’re all so dirty. You’re filthy, dirty filthy Lebs. You make me sick.” The father said he did not believe that the child knew he thought that, but I accept the evidence of the wife as to the comments that the child had made to her about his mother’s side of his family being dirty. I am satisfied that the child is aware that his father at the least refers to his mother and his maternal family as “filthy Lebs.” The child of course is of Lebanese heritage on his mother’s side. He of course is going to be aware, if he is not already, that he is one of the people who is referred to insultingly as a “Leb” and every derogatory comment that has been made about that ethnic background by his father applies to him.
The father’s inability to put the child’s best interest at the forefront instead of his own, and to restrain himself from expressing his emotions in this fashion is not a sign of good parenting and in the language of the additional considerations section shows an inability:
(c) … to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
(f) … to provide for the needs of the child including emotional and intellectual needs;
and is a factor to be taken into account in considering:
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
(j) any family violence involving the child or a member of the child’s family;
This is not the only matter which the child inappropriately knows about in relation to the break up of his parents. He is also aware that his father is in trouble and that he (the father) perceives that there is even a risk of gaol associated with his behaviour. The child has told his mother about his interview with the police officer “I tricked that lady so Daddy wouldn’t go to jail. If I tell her that Daddy is really angry and does all that stuff he will go to jail and we’ll never see Daddy again.”
I accept the mother’s evidence of conversations with the child which show that the child has become an advocate for his father in the litigation telling the mother, “Your solicitors are stupid. … It’s your solicitors fault I’m not seeing Daddy.” He has said on Sunday, 7 December 2003 to his mother, “it was just flicking like that”. All of these matters have placed a huge burden on the child who must feel responsible for the situation which is not his responsibility. Again this speaks poorly of the parenting that the child receives from his father.
The father is critical of the mother in relation to various consequences of her employment as a retailer. At the same time the father’s attitude to the financial support of the child is that he is paying what he is legally required to pay. This is a minimal amount. Again it shows a father who is more preoccupied with his “rights” than with the impact of his actions on the child, and who has not only left the real financial burden of supporting his child on the child’s mother, but then criticises her for things that happen as a result of her working to support the child. This is immature, and again, is not good parenting.
The episodes which have caused such concern started in May 2002 when the child reported to the mother that his father touched his “zabro” that is, his penis, this being the Arabic word with which the child is used to describing it.
It is clear from the reaction of the paternal grandfather that the father was not brought up in an environment where that was considered appropriate. When the grandfather heard about the episode he immediately and emphatically told the father that it was not ever to be done again, and warned him that there could be trouble for him if the child told someone else that his father touched his genitals. The grandfather said, “You should never do that. Don’t do anything that brings attention to a child’s private parts.”
Again on the long weekend in October 2002 when the parents and the child were at the paternal grandparents’ place, when the child said to his paternal grandfather, “Pappou, Daddy touched me on the zabro.” The grandfather said, “When was that J?” and the child said, “When we were just wrestling.” The grandfather called the son and said, “[the child] tells me you touched him on the zabro when you were wrestling. Didn’t we talk about that once before?” The father replied, “Yes, but you don’t understand. It’s a joke. We wrestle and I flicked him there. It’s nothing. We’re just mucking about. He says it so you can go crook on me.” The grandfather said, “Well, I’ve told you before. Don’t do it. Kids don’t understand. For whatever reason it’s on his mind and you don’t want him going around saying that to others. They could get the wrong idea”, to which the father replied, “OK Dad, you’re right. I won’t flick him there again.”
The father sought to justify his actions by blaming this behaviour on the mother’s family saying that, “[a male relative of the mother] would often grab or lunge at [the child] and the other children’s groin area. I was not concerned. It was a constant source of humour in the [mother’s family’s] household this sort of horseplay.”
If this sort of behaviour which he claims took place in the wife’s extended family did in fact take place, and he was not concerned at an adult grabbing children in their groin area, and did nothing to indicate that as the child’s parent he did not want this to happen to his child, then this would show a deficiency as a parent. If it happened the father’s reaction should have been the same as the paternal grandfather, that is to stop the child behaving in this way and to remonstrate with anyone who was involving his son in such behaviour.

In fact, after hearing the witnesses, and seeing them cross-examined I do not accept that it was something that took place in the mother’s family. I am satisfied that it was not considered appropriate behaviour in the mother’s family any more than it was in the father’s family.
The father, who admittedly was on the defensive and trying to justify his actions, claimed that it was just a “flick”, during a bit of “horseplay” with the child. He demonstrated it in the witness box as an action which was the same sort of action people employ in brushing off a fly or a speck of food from ones clothes. I will come in a minute to evidence by the mother’s family that the child had demonstrated a different action which was less of a “flick” and more of a squeeze.
The context in which this took place is that the child had a history of a sore penis (which was described by the paternal grandfather as ‘an irritation on the tip of his penis’ which had required the application of creams by the parents). Even if it had no sexual connotations a considerate parent would avoid “flicking” an area which had been irritated and sore in the past.
When the child reported to his mother that his father had touched him there and the wife asked him if he had, the father’s immediate reaction was to deny it, saying, “No I didn’t [the child] is just trying to get me into trouble.” In cross examination[6] he dismissed this as, “That’s what I classify as a white lie.” However it was not “a lie uttered from polite, amiable or pardonable motives; a harmless fib”[7]. It was a lie to try to avoid responsibility for something. It suggests the father knew that what he was doing was not something which was appropriate. By doing so, he was also calling the child a liar, when he knew he had been truthful, and seeking to put the blame on a child for inappropriate adult actions. That is not the action of a good person, let alone the action of a good parent. Parents should teach their children that it is important to tell the truth. Parents should protect their children from false accusations, not make them against them to try to hide behind them.
[6] Transcript 23 November 2005 p 115
[7] Macquarie Dictionary First Edition
The child’s interviews with the JIRT team members are painful to watch for several reasons, but they reveal a child who has a confused understanding of the meaning of the truth. This is a difficult enough concept without it being made more difficult by mixed messages being sent to a child by the actions of a parent. In the second interview for example, when his understanding of the truth is being explored the child says amongst other things “Truth means lie”, “It’s bad to tell the truth”, but also “If you do tell the truth you don’t go to hell”. When he is “put on the spot” about what he said in the first interview being different from what he told his mother, he curls up on the sofa and twists about and looks very distressed. He tries to explain it away as “tricking” rather than lying, but at the same time he speaks about going down to hell if you don’t tell the truth. It is of little consolation to be told by the interviewing officer “You are not in trouble with me or [H] or Mum” if you think that God is going to see that you burn in hell (having said in the first interview that he wouldn’t like to go to hell because there were flames and burns) and that your earthly father will be angry with you.
Returning to the May 2002 episode, the mother then said to the husband, “Tell me the truth, did you touch him there?” to which the husband replied, “Yes, but I was only joking and mucking about.” It would not be surprising if the mother was not only concerned about the action, but also concerned about the lie the father told.
There was another episode in June 2002 when the father admits he did it again and when the child called out to his mother said, “relax, we were just wrestling.” She said, “[…] just don’t do that.”
The third episode which the father says took place in July 2002 in O he described as, “I flicked [the child’s] penis on the outside of his clothes momentarily in the same manner as before. [The child] was trying to grab me there as well. [The child] then feigned to kick me in the groin area and I said, ‘Don’t do that, you might get me there.’ [The child] then called out, ‘Mummy, Daddy touched me on the zabro’. The wife said, “don’t do that”. The husband says that [the child] then ran to [the father’s] father and said, ‘Daddy touched me on the zabro. My father spoke to me sternly.” There seems to be some confusion about when and where this took place, but there does not seem to be any doubt that the father repeated the action after the first time his father (the paternal grandfather) told him not to do it.
In his affidavit of 25 June 1997 the father says, “On reflection I realised my conduct was stupid, immature and inappropriate.” That would be an insightful comment if it really were the view held by the father, not the drafter of the affidavit, but the father continued to downplay the significance of his behaviour, try to blame others and display a demeanour during the hearing that was more defiant than remorseful.
It is also of concern that the father tries to explain why he lied about the touching on the child’s penis, whatever the duration of the contact was, was related to the fact that he enjoyed stirring the wife up by this “form of banter”. He said, “I liked to stir her up a bit, no real reason but just to stir her up[8].” He said he was untruthful because “I was stirring her. That’s my form of banter between the three of us, cause a bit of friction, just. …”. When asked why he had not said what he says was the truth, “Well I did it, but it was an accident,” the husband said “Because as I knew the then wife that she wouldn’t accept an answer like that. Her thought process was quite irrational I thought[9]. So I mean, I have my way of responding to my wife as the next person responds to his wife.”[10] “I knew this person to be overprotective, over-dramatic, to read into things too much. Therefore, that’s why I said, you know, no I didn’t.”
[8] Transcript p 115 at 43 and 118 at 15
[9] Emphasis supplied
[10] ibid 116 at 20

The history of the matter in fact suggests that the wife came to the conclusion that something was amiss reluctantly and with real difficulty. On the father’s own version the wife did accept the “truthful” explanation without any of the drama he said she would show. He interpreted the slap which she gave him as merely done in fun. That did not cause him to revise his opinion of the wife.
His other explanation for why the event happened was:
“The other reason is if I knew I would get a reaction from [the child] - if that flicking incident – because he liked to dob, - he played his dobbing games with us, with my grandparents, a number of instances. He liked playing the dob-in game. I knew that that would get a reaction from him. And I found the phrase he used to use, you know, I thought it was just a cute way of saying something.[11]”.
[11] ibid 117
To encourage “dobbing” as a game, to encourage anyone to get pleasure from seeing someone in trouble by reporting their misbehaviour, is not likely to help them have a happy life, certainly in Australian society where being a “dobber” is not a way to popularity. It is worse if it’s a child being encouraged to do that by one parent against the other, and they get the impression that that is how parents should operate. Parents should support each other and present a united front to their children, not be encouraged to be negative about one parent to the other.
To partly justify setting up an incident on the basis that he found the phrase[12] the child used to refer to his genitals “cute”[13], is also an indication of a lack of appreciation of how inappropriate the whole episode was. That this was maintained at the hearing was a concern.
[12] The father uses the word “phrase” but may mean just the ‘word’ zabro. If he found the combination of ‘zabro’ and ‘daddy touched my’, “cute” that is an unexpected reaction in a father.
[13] ibid 117 at 9
My conclusion is that the mother has reasonable grounds for being concerned about the father’s interaction with the child based on the admitted actions of the father and the observations of third parties of the child’s problems at school and his inappropriate behaviour with a playmate. I found her to be a truthful witness and would incline to think she is an accurate reporter of things the child has said to her. I would treat the child’s claims with some caution however as he is clearly very responsive to what he believes will be the best thing for him to say in any given situation.
As was put in annexure F to the wife’s affidavit of 17 March 2004, a letter from her solicitor to the husband’s:
“It is her view that your client does not know appropriate boundaries and until she is satisfied that [the child] will not be at risk, she is not willing to have unsupervised contact between [the child] and your client. She has been advised by two members of the Child Protection Investigation Team that in fact contact should not take place unless it is supervised.”
The evidence discussed above supports the view that the husband does not know appropriate boundaries. As indicated above in matters where there is a question of inappropriate sexual interaction, “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”.[14]
[14] Emphasis supplied
I find that there are reasonable grounds to believe that the father has engaged in abuse of the child. I find that there are reasonable grounds to believe that there has been family violence. I find that unsupervised access would expose the child to an unacceptable risk of sexual abuse.
The presumption referred to in Section 61DA(1), that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child, is therefore displaced.
In her application the mother seeks sole parental responsibility.
The mother has shown greater parental responsibility than the father. She has been financially responsible, the father has only done what he is required to do under the compulsion of the law in terms of financial support for the child.
The example of the failure to agree on the counselling discussed with the school indicates that the parents are unable to reach an agreement to enable arrangements to be made which would be necessary for the benefit of the child. The mother’s behaviour in that situation was responsible and in the child’s best interests. The level of animosity between the parties indicates that the possibility of improvement in the situation is dim. It is necessary for the parent with whom the child is to be living to be able to make arrangements for the benefit of the child that cannot be frustrated by the other.
In such circumstances it will be in the child’s best interests for the mother to have sole parental responsibility.
The provisions of Section 65DAA “Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances” are not applicable if a parenting order provides other than that a child’s parents are to have equal shared parental responsibility for the child.
The husband amended his application to seek to have joint residence. The father had started a new relationship with Ms C and had said in his affidavit that they were engaged to be married. Since he worked Monday to Friday from 10 to 6 Ms C would be picking the child up from school and would be playing a significant role in his care under the husband’s proposal.
In his affidavit of 21 November 2005 he said:
“I am now motivated to seek joint residence of [the child] because I believe it is in J[the child’s] best interests. Part of the reason which [the child] behaves in the manner described by [the wife] is that he misses me and longs for more time with me.” I do not agree with the husband’s interpretation of the child’s behaviour, which takes no account of the hostility that the child has been exposed to and the inappropriate actions of the father and their consequences in terms of investigations.
Miss C is a child care worker, and gave evidence. She was thirty years old. She has not been married before. She was tearful and distressed at the start of her evidence. She lived with her parents. She did not drive a car. There has been no formal engagement party. She said she would like to live with the father before they got married but “whether my parents would agree to that, I don’t know but …”[15]. They had discussed living together but “I think I will live together with [the father] before I get married. I just need to discuss that properly with my parents first”. She had not read Dr M’s report. She did not believe the allegations. The father had referred to the mother as a “Filthy Leb” in one telephone contact with her. She impressed me as a nice person but one who has lived a sheltered life.
[15] Transcript 25 November 2005 p 294 at 43
As indicated above the court had the great assistance of two reports by

Dr M, an independent psychiatrist. I was impressed by her as a witness, and her observations of the parties were consistent with the observations which I was able to make during the hearing. I accept that her recommendations would be in the child’s best interests.
The child loves his father and will benefit from having a meaningful relationship with him, but at the same time there is in the words of the sub-section, “(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.” This must be addressed by supervision of the father’s time with him when there will be the risk of inappropriate behaviour.
The mother sought that the father had to ensure that the child attended his extracurricular activities such as soccer during the time he spent with the child. Ideally a child’s activities should not be disrupted because his parents have separated. Many children of separated parents can never get the benefit of being in a school sports team for example, because the parents will not
co-operate in both taking the child on their alternate weekends. In this case however there is already concern being expressed by the father’s family that the child’s Greek heritage is being outweighed by the mother’s Lebanese heritage. It may well be that the father wishes the child to attend Greek language school, or other Hellenic activities. Maintaining that heritage is significant and for the child’s benefit. I will not impose any restrictions or directions on what activities the child undertakes when he is with his father.
Some time has passed since the hearing of this matter at which time there had been no recommendation for holiday time to be spent with his father, however the child is now 9 and eight months and the time to be spent with the father during school holidays will enable him to spend time on holiday type activities without being too long away from the mother.
I accept the recommendation of Dr M in relation to counselling being beneficial for the child.

I certify that the preceding sixty (66) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Lawrie.

Associate:

Date: 2 March 2007

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as MARTIN & MARTIN

[2007] FamCA 138

2 March 2007

Key Legal Topics

Areas of Law

Family Law

Evidence