Marvel & Marvel

[2021] FamCA 83

FAMILY COURT OF AUSTRALIA

Marvel & Marvel [2021] FamCA 83

File number(s):

SYC 5162 of 2017

Judgment of:

HANNAM J

Date of judgment:

25 February 2021

Catchwords:

FAMILY LAW – CHILDREN – Undefended parenting – Where the applicant father has been convicted of child sexual assault against the child’s half-sibling – Where the applicant father discontinued his application for final orders – Where the mother seek orders that she hold sole parental responsibility for the child and that the child live with her and spend no time and have no communication with the father – Where the ICL supports orders sought by the mother – Where there is risk of sexual abuse and resulting psychological harm in the father’s care – Where it is in the child’s best interests to make orders in terms sought by the mother – Orders made as sought by the mother.

Legislation:

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61B, 61C, 61DA

Cases cited:

G & C [2006] FamCA 994

Deiter & Deiter [2011] FamCAFC 82

Goode & Goode (2006) FLC 93-286

Johnson & Page [2007) FamCA 1235

M v M (1988) 166 CLR 69; [1988] HCA 68

Mazorski & Albright (2007) FamCA 520

McCall & Clark (2009) FLC 93-405; 41 Fam LR 483; [2009] FamCAFC 92

Number of paragraphs:

80

Date of hearing:

17 November 2020

Place:

Parramatta

Counsel for the Applicant:

No Appearance

Counsel for the Respondent:

Ms Bennett

Counsel for the Independent Children's Lawyer:

Ms Hafey

ORDERS

SYC 5162 of 2017

BETWEEN:

MR MARVEL
Applicant

AND:

MS MARVEL
Respondent

SYC5162/2017

LEGAL AID NSW

Independent Children’s Lawyer

ORDER MADE BY:	HANNAM J
DATE OF ORDER:	17 NOVEMBER 2020

THE COURT ORDERS THAT:

1.The mother have sole parental responsibility for the child X born … 2013 (“the child”).

2.The child shall live with the mother.

3.The father shall spend no time and have no communication with the child by any means.

4.Pursuant to section 68B of the Family Law Act 1975 (Cth) the father, shall be and is hereby restrained from contacting the mother or the child by any means whatsoever and shall be further restrained from approaching any residence at which the mother or the child reside from time to time, any place of employment, school vacation care or similar provided to the child or being within 100 metres of such premises.

5.Order 4 is an order for personal protection to which a power of arrest without warrant attaches pursuant to the provisions of section 68C of the Family Law Act 1975 (Cth).

6.The Independent Children’s Lawyer has liberty to provide the orders to any relevant correctional service or facility.

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

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 17.02 Family Law Rules 2004 (Cth).

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

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

REASONS FOR JUDGMENT

HANNAM J:

INTRODUCTION

1. These proceedings concern the long term parenting arrangements for the parties’ only child, a boy aged seven (“the child”).

2. The parties were married in 2012 and lived together until separation. The mother’s child of a previous relationship, a boy aged now aged 12 (“the child’s half-sibling”) also formed part of the parties’ household.

3. In April 2016 the child’s half-sibling made a disclosure to the mother that the father had inappropriately touched him. When confronted by the mother, the father made an admission that he had touched the child’s half-sibling on the genitals.

4. The father made further admissions to the mother in June 2016 that he had indecently touched the child’s half-sibling on three occasions. The mother ended the relationship as a result of these disclosures and subsequently reported the disclosures to the police and the Department formerly known as Family and Community Services (“The Department”).

5. Following separation the father had no contact with the child or the child’s half-sibling until he began started spending time with the child under the supervision of the paternal grandmother in late 2016. In June 2017 the child’s time with the father was suspended by the mother after the child himself made disclosures of being inappropriately touched by the father, and further more serious allegations about the father’s conduct towards the child’s half-sibling were forthcoming.

6. The father commenced proceedings in January 2018 seeking orders that he hold equal shared parental responsibility for the child with the mother, that the child live with the mother and spend substantial and significant time with him. At the time of commencing proceedings the father had been convicted of two counts of indecent assault of the child’s half-sibling, which he intended to appeal. The mother filed a Response seeking orders that she hold sole parental responsibility for the child, that the child live with her and that the father be at liberty to communicate with the child in the form of cards, letters and gifts.

7. As a result of losing his appeal the father’s convictions and sentence to 14 years imprisonment were confirmed. The father then discontinued his application for final orders. The mother amended her Response seeking orders that the child spend no time and have no communication with the father, as well as injunctions against him to protect the child. The mother’s proposal which is supported by the Independent Children’s Lawyer (“ICL”) was dealt with to finality on an undefended basis.

8. At final hearing, orders were made as sought by the mother and it was indicated that Reasons for these orders would be published at a later date. These are those Reasons.

   BACKGROUND

9. The mother who is 46 and the father who is 49 began living together in 2010 and were married in 2012.

10. The only child of the parties’ marriage was born in 2013. The child’s half-sibling was five when the child was born.

11. The mother and the father lived together with the child and the child’s half-sibling until June 2016 when the mother and father separated as a result of the child’s half-sibling making disclosures of sexual assault against the father. These disclosures are central to the mother’s case that the father poses an unacceptable risk to the child, a matter to which I will return.

12. The mother notified the father that the relationship was over as a result of the further disclosures made by the child’s half-sibling in June 2016.  On the same day she reported the disclosures of sexual assault to both the Department and the police. According to the Magellan Report [1]this allegation concerning the child’s half-sibling was referred to and investigated by the Joint Investigation Response Team (“JIRT’)[2], and these investigations led to the arrest of the father.

    [1] The Magellan program is a fast-track Case Management program in the Family Court that deals with serious allegations of physical and sexual child abuse.  A Magellan report sets out the involvement of the Department of Communities and Justice with the family.

    [2] The Joint Investigation and Response Team, made up of officers from police and Community Services investigated allegations of serious child abuse at the time of this complaint.

13. In July 2016 the mother gave her first written statement to police in relation to the child’s half-sibling. Subsequently a provisional Apprehended Domestic Violence Order (“ADVO”) was made against the father for the protection of this child.

14. In July 2016 the father was arrested and charged with five counts of indecent sexual assault of a person under 16 years of age. He was released on bail with a condition being that he was not to be in the company of any child under the age of 16 unless the adult with parental responsibility for such a child was also present.

15. In late 2016 the paternal grandmother approached the mother to request that the child spend time with the father under her supervision. The mother agreed to this arrangement and the paternal grandmother signed an undertaking that she would be present with the father when the child was in the father’s care. As I understand it, she was unaware that the father spending time with the child under this arrangement meant that the father was in breach of his bail conditions.

16. The paternal grandmother began to pick the child up from home or pre-school on a weekly basis, so that the child could spend a few hours in the grandmother’s care, while the father was present.

17. In May 2017 the child’s half-sibling made further disclosures of sexual assault against the father and the father was charged with a further six offences. The child also reported that the father had indecently touched him also but these complaints were not further investigated.

18. Following the further reports by the half-sibling and the child’s complaints the mother no longer facilitated the child spending time with the father.

19. In September 2017 the father was found guilty of two charges and acquitted of three charges at his first criminal trial. The jury failed to reach a verdict on the remaining six counts.

20. In January 2018 the father filed an Initiating Application in the Federal Circuit Court seeking equal shared parental responsibility with the mother for the child and orders that he spend time with the child on a weekday evening and overnights on alternate weekends, as well as on special occasions.

21. At the first return date for the father’s Initiating Application in the Federal Circuit Court in March 2018 the proceedings were transferred to this Court. In this court the proceedings were allocated to the Magellan Program and an ICL was appointed.

22. The father appealed his two criminal convictions in September 2018. His appeal was dismissed by the Court of Criminal Appeal in late 2018.

23. In February 2019 a re-trial was held in relation to the six charges where no verdict was reached in the initial trial. The father was found guilty of all six charges on the second occasion.

24. Ultimately, the father was found guilty of two counts of sexual intercourse with a child under 10 years of age and six counts of indecent assault of a person under 16 years of age. He was sentenced to 14 years imprisonment with a non-parole period of eight years and six months which commenced in February 2019.

25. On 16 September 2020 the father withdrew his Initiating Application as a result of his appeal being dismissed in the Court of Criminal Appeal. On that day I dismissed the father’s application, and as the mother pressed for parenting orders, her application proceeded to final hearing on an undefended basis on 17 November 2020.

    THE RISK POSED BY THE FATHER

26. It is the mother’s case that the father poses an unacceptable risk of harm to the child on the basis that he may sexually abuse the child. This allegation arises from his abuse of the child’s half-sibling and possibly the child himself.

27. The mother deposes that sometime in or around April 2016 there was an incident where she witnessed the father and the child’s half-sibling who was then aged eight in bed together and the father’s hand was underneath the blanket (“the April 2016 incident”). She deposes that the father jumped when she appeared and looked alarmed that she had walked in.

28. Later in the afternoon of the same day the mother approached the child’s half-sibling and asked what he and the father were doing in the bedroom that morning. The child disclosed that the father was “touching [his] doodle. It was a game.”

29. In the same afternoon the mother also questioned the father in relation to the incident. The father admitted that he touched the child on the penis.

30. According to her affidavit a couple of months later the mother questioned the father in relation to the April 2016 incident and during this conversation the father made admitted to touching the child’s half-sibling three times.

31. A few days after this second conversation, in July 2016 the mother provided her first written statement to police in relation to the April 2016 incident. This written statement was admitted into evidence at the final hearing and is consistent with the mother’s trial affidavit as to these matters.

32. Following the initial disclosure of sexual assault, the child’s half-sibling began counselling in July 2016. As a result of strategies learnt during counselling the child’s half-sibling made further disclosures of sexual assault. The mother deposes that the child’s half-sibling also began writing in a book to convey his “worries” to her.

33. In May 2017 the child’s half-sibling wrote in his book and told the mother “he sucked on my doodle” and “he put his mouth on my doodle Mum”. The mother asked how many times it had happened, to which the child’s half-sibling replied “about 6 times, no maybe every second time”. A few days later the child’s half-sibling asked the mother to write in his book, “he grabbed my hand and forced my hand to go on his doodle”. In relation to both complaints the mother took “he” to be a reference to the father.

34. Following further disclosures by the child’s half-sibling the mother provided a second statement to police.

35. Although the mother deposes to receiving complaints about the father from the child’s half-sibling and further information is contained in Magellan Report, the best understanding of the father’s conduct which relates to the matters for which he was convicted can be gleaned from the indictment presented by the prosecution and the Crown Case Statement from his criminal trial, copies of which were admitted in these proceedings.

36. It can be understood from the Crown Case Statement that the father’s first two charges relate to an act of sexual abuse which occurred sometime between 2013 and 2014 when the child’s half-sibling was around five or six years old. On this occasion the child’s half-sibling had been asleep on the lounge in the living room of the family home and when he woke up the father pulled on and sucked his penis. The mother was also asleep at the time of the abuse and upon her waking the father stopped his conduct.

37. The second act of sexual abuse occurred sometime between 2014 and 2015 when the child’s half sibling was about six or seven years old. This abuse occurred when the father and the child’s half-sibling were alone in the parties’ bedroom. The child’s half-sibling was lying on the bed and the father was standing with his underwear down when he grabbed the half-sibling’s hand and forced it onto his penis.

38. The third occasion of sexual abuse occurred in 2015 when the child’s half-sibling went into the bedroom of the parties during the night and slept for a period of time in bed between the parties. While the mother was asleep and facing away the father used his fingers to “lift up” and pull the half-sibling’s penis through his clothes. On another occasion in 2015 the child’s half-sibling again slept in the parties’ bed and the father pulled down the half-sibling’s pants and fondled and pulled on his exposed penis.

39. The father sexually abused the child’s half-sibling again in 2015 on an evening when the mother had gone to the gym. The child’s half-sibling had been lying on his bed in his bedroom when the father came in and placed his hand on his penis on top of his shorts and fondled his penis for several minutes.

40. Sometime in early 2016 when the child’s half-sibling was around seven or eight years old he slept in between the parties in their bed. While in bed the father pulled on the child’s half-sibling’s penis through his clothes for around two minutes.

41. Again in 2016 the father sexually abused the child’s half sibling while the mother was out of the house. This abuse occurred following the child’s half-sibling falling asleep on the lounge in the living room. On this occasion the father pulled and sucked on his penis seven or eight times. The father stopped his abuse when he heard the sound of the mother’s car and he told the half-sibling not to tell the mother.

42. The Crown Case Statement provides details of the April 2016 incident which I have previously mentioned. On this occasion the child and the child’s half-sibling had gone into the bedroom of the parties and entered their bed where both the mother and father were pillow fighting with both of the children. The child to whom this application relates then left the room and the mother followed. She returned to the room approximately 10 minutes later and found the father and the child’s half-sibling lying on their backs in the bed with the father’s hand moving underneath the blanket. The father stopped the abuse upon the mother’s interruption. Later in the day the child’s half-sibling told the mother that the father had “touched [him] on the doodle” and the father admitted to the touching when questioned by the mother. The father was charged with aggravated indecent assault in relation to this incident. In total, the father was charged with 11 counts of aggravated indecent assault (under 16 years) and aggravated sexual intercourse with a child under 10 (under authority).

43. As the father was convicted of eight of the offences with which he was charged I am satisfied that he was found guilty of those offences on the basis that the matters outlined in the Crown Case Statement were found proven to the criminal standard at his trial. Accordingly, for the purposes of these proceedings I am easily satisfied that he engaged in the conduct as alleged in the Crown Case Statement.

44. The child also made a disclosure to the mother in May 2017 that the father “touched” him (while the child pointed to his genital area) and this conduct appears to have allegedly occurred during the period the child spent time with the father supervised by the paternal grandmother. The mother does not seek a finding that the father sexually assaulted the child at this time but relies upon this disclosure in relation to the question of the risk posed by the father.

45. In light of the serious allegations of abuse of the child’s half-sibling, which I have easily found proved given his criminal convictions, it is in my view also not necessary to make a finding about whether the father sexually abused the child but the child’s allegations will be considered in relation to the question of risk posed by the father.

    Discussion - Risk of harm

46. It is the position of both the mother and the ICL that there is an unacceptable risk that the father may sexually abuse the child and that the child will be physically and psychologically harmed as a result. The mother and ICL also contend that the child may be psychologically harmed if he were to have contact with the father, given the father’s sexual abuse of the child’s half-sibling.

47. In Deiter & Deiter [2011] FamCAFC 82 the Full Court explained in the context of interim parenting orders that risk assessment comprises two elements. The Court said at [61]:

    Risk assessment comprises two elements – the first requires prediction of the likelihood of the occurrence of harmful events, and the second requires consideration of the severity of the impact caused by those events. 

48. So far as the second element is concerned it is beyond question that child sexual abuse brings with it grave harm for the child concerned. Having regard to the nature of the proven sexual abuse in this case, I have no doubt that if the father were to engage in similar sexual abuse of the child the severity of the impact caused by such abuse would be of the highest order.

49. In the circumstances of this case I am satisfied that there is a strong possibility that the father may engage in sexual abuse of the child should he have any unsupervised physical contact with him for the following reasons.

1. It is apparent that the father engaged in many acts of serious sexual abuse of the child’s half-sibling without the mother being aware of this conduct. On most of these occasions the mother was in the home or even in very close proximity of that child when the abuse was taking place but her presence was ineffective in protecting him. It would appear likely that given this physical proximity and the half-sibling’s first disclosure that he and the father were engaged in a “game” the father had engaged in the process of grooming that child (and possibly the mother) for that abuse. This particularly insidious feature of child sexual abuse is very difficult to guard against.

2. There is also complaint from the child himself that the father “touched” him which appears likely from the context in which it was said, to have occurred during a period in which the child’s time with the father was supervised by the paternal grandmother. The half-sibling’s allegations had also commenced with a complaint of the father touching him and only later developed into further, more detailed and concerning allegations about the father’s conduct which have now been proved.

3. In relation to the risk of sexual abuse I also attach weight to the fact that the child is of the same gender as his half-sibling and is of a similar age to that sibling when he was abused.

4. In these foregoing circumstances I am easily satisfied about the likelihood of sexual abuse and the severity of the impact caused by the sexual abuse if the child were to have contact with the father under any circumstances other than contact supervised by qualified professionals. 

5. The mother also contends that even if the possibility of sexual abuse itself could be mitigated by supervision (and there is no such proposal under consideration) the father also poses an unacceptable risk of psychological harm to the child on the basis of his offending against the child’s half-sibling.

6. The nature of the father’s offending is demonstrably grave and for the reasons given I consider that there is a very real possibility he also engaged in surreptitious grooming of the child’s half-sibling for that abuse. There is also some risk that the child has already been abused by the father in circumstances where supervision should have prevented such abuse if it occurred.  In these circumstances I consider it likely to be alarming and confusing for the child if he were to be brought into contact with the father and any such contact is likely to cause the child to question the capacity of adults around him to keep him safe. In these circumstances there is a real risk that the child could experience significant mental health difficulties. I am thus easily satisfied that the father poses an unacceptable risk of psychological harm to the child should he have any form of contact with him.

   THE LAW & DISCUSSION

7. The objects of Part VII of the Family Law Act 1975 (Cth) (“the Act”) and the principles underlying it set out in s 60B, form the framework for the part of the Act dealing with parenting.

8. The objects 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.

9. 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).

10. According to s 60CA of the Act, in deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of a child as the paramount consideration.

11. Section 60CC sets out the primary considerations and additional considerations to be considered by a Court in determining what is in a child’s best interests.

    Primary considerations: s 60CC(2)

12. The primary considerations (under s 60CC(2)) 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. 

13. I am required to give greater weight to the need to protect the child from harm than to the benefit to the child of having a meaningful relationship with both parents.

14. Although the meaning of the phrase “meaningful relationship” is not defined in the Act the Full Court has interpreted it as meaning a relationship which is “significant” “important” or “of consequence”.[3] The Full Court has not interpreted this consideration as creating a presumption that a child does receive a benefit from having a meaningful relationship with both parents. The Full Court in McCall & Clark (supra) said at [122]:

    No doubt in the majority of cases there will be a positive benefit to a child of having a significant relationship with both parents, but there will also be some cases where there will be no positive benefit to be derived by a child by a court attempting to craft orders to foster a relationship with one parent if this would not be in the child’s best interests.

    [3]McCall & Clark (2009) FLC 93-405; 41 Fam LR 483; [2009] FamCAFC 92.

15. As the father no longer seeks any orders that would foster his relationship with the child he can be taken to have accepted that there is no benefit to the child in having a relationship with him. In circumstances where I am satisfied that the father poses an unacceptable risk of harm to the child if he were to have any contact with him I am also satisfied that there is no positive benefit to the child in attempting to craft orders to foster his relationship with the father.

16. As is clear from this judgment the second of the primary considerations, being the need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence, is of the most significance in the proceedings. For the reasons previously given I am satisfied that the father poses an unacceptable risk of harm to the child should the child have any contact with him.

17. The two primary considerations are effectively determinative in this case and for this reason the additional considerations set out in s 60CC(3) need be given only fleeting consideration. In these circumstances it suffices to observe the following.

18. Given the severity of the father’s conduct it is not appropriate for the child’s views to be taken into consideration in this case. For this reason no family consultant or expert was appointed, nor did the ICL attempt to contact the child to determine his views.

19. The mother has been the child’s primary care giver throughout his life and the child has had little contact with his father since mid-2016. It can be assumed that the child’s relationship with his mother is his most significant attachment relationship.

20. It can be taken from the father’s disengagement in the proceedings that the father has forfeited his opportunity to participate in the child’s life in all respects.

21. The mother has been solely financially responsible for the child and the father has not provided any financial assistance for the care of the child.

22. There is little doubt that the mother has demonstrated parental capacity in being appropriately protective of the child and his half-sibling and attending to their daily care since June 2016. It is recorded in the Magellan Report that the mother has been able to protect the child from potential risks and neither the Department nor any other agency have raised concerns regarding the mother’s parenting ability.

23. The mother has also shown to be attuned to the child’s emotional needs by ensuring that the child receives adequate therapy. The mother deposes that the therapist has assisted the child with his emotional issues, including managing his anger and sensitivity.

24. The mother has also been attentive to the intellectual and physical needs of the child and has sought appropriate medical assistance.

25. It can be seen from the father’s disengagement from the proceedings that he has abandoned his the responsibilities as a parent in all respects. As the father has been imprisoned with a non-parole period of 8 years and 6 months which commenced on 11 February 2019, it is highly unlikely he could fulfil these responsibilities in any event.

26. Although the child the mother did facilitate some contact between the father and the child after separation this contact was permanently suspended in June 2017. As a result the child has not spent any time with the father since he was four years old. Since this time the child has only lived with the mother and these orders will not result in a change of the circumstances for the child.

    CONCLUSION

27. The only parent seeking orders in relation to the child under consideration is the mother. The father has discontinued his application and can be taken to have forfeited any interest in the child’s future.

28. The presumption in favour of equal shared parental responsibility in s 61DA of the Act does not apply as the father has engaged in abuse of another child in the household. In any event he no longer seeks parental responsibility for the child. Given his disengagement and my findings as to the risk posed by him I am easily satisfied that it is in the child’s best interest for the mother to have sole parental responsibility for the child.

29. Having regard to all of the factors in relation to the best interests of the child and giving due weight to each of them, I make the orders as sought by the mother and supported by the ICL in relation to the living arrangements for the child.

30. I also consider it appropriate to make the restraints sought by the mother in relation to the father’s conduct to reduce the possibility of the father coming into contact with the child or the mother and to provide the greatest protection for them both as is available from the Court. Such orders are easily justified in light of the gravity of the risk posed by the father to the child (and to the mother who is raising her children in the knowledge of the father’s conduct).

31. The orders that I make are as set out at the forefront of these reasons for Judgment.

I certify that the preceding eighty (80) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hannam.

Associate:

Dated:       25 February 2021