MAYNARD & ORR
[2015] FamCA 998
•12 November 2015
FAMILY COURT OF AUSTRALIA
| MAYNARD & ORR | [2015] FamCA 998 |
| FAMILY LAW – CHILDREN – sole parental responsibility – the father be restrained from communicating or spending time with the child – the father be restrained from approaching any place occupied by the child – where the father perpetrated domestic violence upon the mother – where the father is found to be a substantial risk to the child – discussion of whether the mother would facilitate a meaningful relationship with the father – consideration of whether the paternal grandparents have time with the child – where the father disengaged with the proceedings. |
| Family Law Act 1975 (Cth) s 4 s 4AB s 60B s 60CA s 60CC s 61DA s 61F s 62B s 65DA s 65DAA s 65DAC Evidence Act 1999 (Cth) s 140 |
| Banks & Banks [2015] FamCAFC 36 B Mahendra “Psychiatric Risk Assessment in Family and Child Law” (2008) 38 Family Law 569 |
| APPLICANT: | Mr Maynard |
| RESPONDENT: | Ms Orr |
| INDEPENDENT CHILDREN’S LAWYER: | Ms Gray |
| FILE NUMBER: | CSC | 230 | of | 2014 |
| DATE DELIVERED: | 12 November 2015 |
| PLACE DELIVERED: | Cairns |
| PLACE HEARD: | Cairns |
| JUDGMENT OF: | Tree J |
| HEARING DATE: | 13, 14 August and 26 October 2015 |
REPRESENTATION
| THE APPLICANT: | In person on 13 August 2015 then no further appearance |
| SOLICITORS FOR THE RESPONDENT: | Aboriginal & Torres Strait Islander Legal Service (Qld) Ltd |
| COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER : | Ms Lawrence |
| SOLICITORS FOR THE INDEPENDENT CHILDREN'S LAWYER: | Susan Gray |
Orders
All previous parenting orders are forthwith discharged.
Y Maynard-Orr born … 2010 (“the child”) live with Ms Orr (“the mother”).
The mother have sole parental responsibility for the child.
Mr Maynard (“the father”) be restrained from spending time and communicating with the child.
The father be restrained from approaching within 200 metres of any school, place of residence or employment or any other place occupied by the child and/or the mother.
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.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Maynard & Orr has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT CAIRNS |
FILE NUMBER: CSC 230 of 2014
| Mr Maynard |
Applicant
And
| Ms Orr |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
By his Initiating Application filed 2 May 2014, Mr Maynard (“the father”) sought orders that Y Maynard-Orr, born in 2010, and hence presently five years of age (“the child”) live with Ms Orr (“the mother”) but spend substantial and significant time with him. He did not address questions of parental responsibility. By her Response filed 2 July 2014, the mother sought orders that she have sole parental responsibility for the child, who would live with her and spend no time with the father pending further enquiry. By the time of trial, with those enquiries having concluded, the mother was of the view that the father should spend no time nor communicate with the child. She justified those orders on the basis that the father presents an unacceptable risk of physical and emotional harm to the child.
Ultimately the Independent Children's Lawyer supported the orders sought by the mother.
The trial had an unusual course. Although expected to run for about two days, after it commenced on 13 August 2015, it was unable to continue the following day, as the father had been wounded in a knife attack, seemingly perpetrated upon him by his own brother during the course of the preceding evening. By the time the court rose on 13 August 2015, the paternal grandmother’s evidence had been led, and the cross-examination of the Family Report writer had commenced (but not concluded). The trial adjourned on 14 August.
Then, when the matter resumed before me on 26 October 2015, the father again did not appear. Attempts by court staff to telephone the father were fruitless. No intimation as to his intention not to continue to engage in the proceedings had been forthcoming, but that said, he had not engaged in the proceedings since the trial adjourned in August. The mother and the Independent Children's Lawyer asked me to proceed in the father’s absence, which I determined to do. No further witnesses were required for cross-examination, and although not entirely correct to say that the matter proceeded as if it were undefended, that is the practical effect of the process I adopted.
BACKGROUND FACTS
The father
The father was born in 1974, and hence is presently 41 years of age. For most of his life he has lived in CC. Whilst he describes a generally unremarkable childhood, he first “got into trouble” at school for stealing, and since then has had a steady history of criminal involvement. His convictions include possessing dangerous drugs (1992, 1993 (x3), 1995, 1997 (x2)), offences involving dishonesty or offences against property (1992, 1993, 1994, 1995, 1996, 1997, 1998, 1999, 2009), offences of violence (including breach of domestic violence orders) (1995, 2000 (x3), 2002, 2003, 2011, 2012 and 2013, and most alarmingly and particularly relevant to this matter, child torture in 2004. Although initially sentenced to two years imprisonment for that latter offence, upon an Attorney-General’s appeal, that was increased to four years. He has also been jailed for other offences, most notably his contravention of domestic violence orders.
For much of his life he has heavily abused alcohol. He has also regularly ingested illegal drugs, including speed and marijuana.
He left school in grade ten and worked in the food industry. He does not appear to have ever had long term employment.
On a date which is not clear on the evidence, the father commenced a ten year relationship with a woman who is the mother to his two eldest daughters, A aged 14 and L, aged 12. A and L’s mother brought another child into that relationship, X. It was X who the father was convicted of torturing, when she was aged six. Obviously I will need to discuss the circumstances of that crime in greater detail in due course.
It appears as though the mother and father first met not long after the father was released from jail in relation to the torture of the child X. Their relationship commenced in 2008 when the father was about 34 years of age.
The mother
The mother was born in 1981 and hence is presently 34 years of age. Her father was aboriginal and her mother came from the Torres Strait Islands. The mother was born and raised in CC. However in her final year at school her father, who at the time was in jail, died in custody. Understandably this upset her greatly, but unfortunately she acted out violently at school, and unlawfully wounded another student with a knife. She was expelled from school for that reason. After school she engaged in some hospitality work and ultimately qualified as a community support worker. She had some relationships, and gave birth to a son C in 2001 (making him presently 14 years old).
She was approximately 27 years of age when she met the father and commenced a relationship with him in 2008.
The relationship
It does not appear to be in dispute that from the very inception, the relationship between the parties was a violent one, and the parties’ household and its occupants were regularly affected by alcohol and illicit drugs. It is unnecessary to determine the competing allegations as to who, as between the parties, was the greater instigator of either the alcohol and drug abuse or violence; suffice to say the father was regularly violent to the mother, mostly comprising punching or kicking her, often when one or both were adversely affected by liquor or other drugs.
The father was also regularly abusive to the mother based on her aboriginality.
From time to time the mother would obtain domestic violence orders against the father, however the father has a number of convictions for their breach. Sadly I think it likely that there were more breaches than the convictions would suggest.
Inevitably the parties were engaged with by the Department of Child Safety, Communities and Disabilities (“DoCS”), although as I read the reports, no child was ever removed from the parties’ care.
In early 2010 the child was born. At the time the father was the subject of a domestic violence order in which the mother and C were named as aggrieved. On 17 February 2011 the father threw a bottle at the house where the mother and children were residing and smashed glass louvers. The children were present during this attack. The father was convicted for breaching the domestic violence order then in place. Then on 31 March 2011 the father struck the mother. It does not appear as though he was breached for the domestic violence order, which then expired on 14 October 2011.
On 5 November 2011 the mother presented at the CC Hospital with a knife wound to her back after the father had attacked her with a serrated knife. A further domestic violence protection order was made naming the protected persons as the mother, C and the child. On 17 November 2011 the father hit the mother in the face. On 30 November the father punched the mother to the side of her face.
The children were either present during these attacks or close by. The mother told the Family Report writer, Ms M, that at times of extreme violence, C would sometimes take the child into the bedroom with him, push the louvers out of the window, and through that aperture leave with the child and go to a next door neighbour for help.
On 25 June 2012 the father was convicted of breaching the domestic violence order and sentenced to six months imprisonment. A further domestic order was made on 30 June 2012 of which the mother, C and the child were named aggrieved.
The mother says that that event caused the parties to separate, although the father says that in fact separation occurred in June 2013. Nothing turns upon that. The events which caused the father to say that that effected separation are however important. On 8 June 2013 the father punched the mother in the face whilst she was holding the child. He was drunk at the time. In consequence he was again charged for the breach of domestic violence order, convicted and jailed. He was released from custody in November 2013. He commenced these proceedings on 2 May 2014.
In the course of the discovery attendant upon these proceedings, the mother first learned of the father’s conviction and imprisonment for child torture in 2004. She said that caused her to change the orders which she sought in response to the father’s proceedings to wholly terminating the relationship between the father and the child.
THE ISSUES
During the course of the trial I identified that the following are the significant issues in this case, in that their determination is likely to substantially impact upon the outcome of the case. They are:
1.What is the nature of the present relationship between the father and the child;
2.Would the child benefit from a meaningful relationship with the father;
3.What risk does the father pose to the child;
4.Would the mother facilitate any relationship between the father and the child.
Once I have considered the relevant statutory provisions and legal principles, I will discuss the evidence relevant to those issues before turning to any other relevant s 60CC considerations and 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] 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.
[1]Albeit decided in the context of interim parenting orders, there seems no reason in principle why any different conclusion would apply in final orders.
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.
The standard of satisfaction required
Section 140 of the Evidence Act 1999 (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 likely 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 parties’ allegations against each other, 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.”[2]
[2] See K v R (1997) 22 FamLR 592 and Re W (sex abuse – standard of proof) [2004] FamCA 768 at [15].
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 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:[3]
(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?
[3] 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.
“No contact” orders
Plainly 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. Such orders are commonly employed where the Court is satisfied that a parent poses an unacceptable risk of harm to a child, which cannot be ameliorated by supervision of time and communication between that parent and the child. The authorities germane to that situation were reviewed by the Full Court in Re Andrew (1996) FLC 92-692.
Moreover, it is incumbent upon the court to clearly explain its reasons for any conclusion that safeguarding conditions cannot sufficiently ameliorate the risk posed by the parent: see Blinko & Blinko [2015] FamCAFC 146 at [30].
Aboriginality
The Family Law Act contains a number of provisions which deal specifically with aboriginal or Torres Strait Islander children. Relevant to this case, I identify those as being specifically s 60B(2)(e), s 60B(3), s 60CC(3)(h), s 60CC(6) and s 61F. It is unnecessary to set out the full text of all of those provisions in this case, however it is convenient to refer specifically to the latter two provisions, which are as follows:
60CC(6) For the purposes of paragraph (3)(h), an Aboriginal child’s or a 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.
…
61F Application to Aboriginal or Torres Strait Islander children
In:
(a) applying this Part to the circumstances of an Aboriginal or Torres Strait Islander child; or
(b) identifying a person or persons who have exercised, or who may exercise, parental responsibility for such a child;
the court must have regard to any kinship obligations, and child‑rearing practices, of the child’s Aboriginal or Torres Strait Islander culture.
As to the latter provision, in Donnell & Dovey (supra), the Full Court said at [183]-[184] as follows:
183. It will be seen that s 61F, in the form ultimately enacted, applies to all cases involving an Aboriginal or Torres Strait Islander child. In proceedings under Part VII relating to such a child, the court must have regard to the child-rearing practices of the relevant Aboriginal or Torres Strait Islander culture. Failure to take account of that provision would, in our view, ordinarily amount to appealable error. (For an illustration of a case in which s 61F was properly treated as an “integral” part of the decision making process see the judgment of Young J in Davis v Davis (2008) 38 Fam LR 671.)
184. Section 61F does not say that the outcome will be determined by application of the relevant kinship obligations and child-rearing practices, but the court must have regard to them. In our view, this can only be seen to be done if findings are made regarding those obligations/practices and adequate reasons are given to explain why a decision has been made that either follows or departs from them. We accept this can be done without the court making express reference to s 61F, but we consider it would be desirable that the section is at least mentioned, if not discussed.
The Court continued at [187]-[188] as follows:
187. A rigid interpretation of s 61F may have suggested that the adjournment option was to be preferred. On the face of the section, it is mandatory for the court to have regard to the relevant indigenous child-rearing practice in every case involving a child of Aboriginal or Torres Strait Islander background. If there is no evidence, or there is a lacuna in the evidence, the court cannot fully comply with the obligation imposed by the statute.
188. However, such a strict interpretation of s 61F would be unrealistic. In many cases there will be no evidence at all of the relevant custom or practice. This may be because there is no acceptable evidence available to establish the custom or practice. Alternatively, there may be no evidence because no party asserts it to be of any relevance. For example, the child may have been brought up in a family where all meaningful attachment to indigenous culture has been lost.
In this context it is also pertinent to refer to an aspect of the decision of the earlier Full Court in Re CP (1997) 27 FamLR 486 at 502. Whilst I accept that the following passage is not a statement of principle or law, but rather a recital of part of the relevant evidence in that case, it may be taken as fairly representing an accepted position of general application in many of the cases in this Court involving aboriginal children. There the Court said as follows:
We have already set out his Honour’s precis of the evidence given by Dr M, which he correctly noted was unchallenged. Yet we do not consider that what his Honour recorded of her evidence, which his Honour said he accepted, captured the views she expressed, notwithstanding the limited, or restricted, ambit of her brief. In particular, we do not consider that his Honour had sufficient regard to the following passages of Dr. M’s report:
... Children are born into a world of kin which is so vast they will probably be meeting new kin when they are old men and women. For an Aboriginal child, this network will become one of the two key ways in which their identity as a person is constructed. The other is through relations to country. Both are able to link the child to its ancestors and thus, by implication, to its descendants.''
(see Appeal Book page 244)
and—
Disadvantages of not bringing up an Aboriginal child within his or her own community of kin and within at least frequent visiting distance of country with which he or she is identified might include:
• the loss of relations with a vast range of kin who will perform a wide variety of roles associated with social relations, emotional and physical support, educative knowledge, economic interactions and spiritual training. This is as true of Aboriginal people from communities in `settled Australia' whose continuities of tradition have in certain cases been greatly disturbed by their colonial histories as well as those in more remote areas;
• loss of knowledge which stems from the social interactions mentioned above;
• ambiguities in or loss of identity with one's own kin and country, features I understand as essential to identity from an indigenous point of view, and which are much more specific to certain people and place than is the broader categorisation of `Aboriginal' used by the wider Australian society and which does not necessarily recognise the specificity of indigenous identity.''
We consider that these aspects of Dr M's evidence were of significance in highlighting the disadvantage for an Aboriginal child in not being brought up within their own community and further demonstrate the inter-connectedness between identity and belonging within the specific group to which that child was born, compared to a child's wider identity as ``Aboriginal''. To our mind, the whole thrust of his Honour's judgment demonstrates that he gave the specificity of this child's cultural heritage, and the impact on his future welfare if he were not brought up within it, insufficient weight and this is amplified by his failure to make any reference to the above portions of Dr M's unchallenged evidence in his summary of it.
NATURE OF RELATIONSHIP BETWEEN FATHER AND CHILD
The father last had the child in his care for a week after Christmas Day in 2013. In that period he took the child down to see her half-sisters at Suburb G. This caused the mother to become angry and she insisted upon the child coming back into her care. It seems common ground that there was an angry exchange between the mother’s present partner and the father on that occasion.
The father has only seen the child on one occasion since then, in the course of the interviews for Family Reports on 30 September 2014. Although the child did go up to the father and hugged him, she initially had gone to her grandmother whom she hugged tightly. In hugging her father, Ms M observed that the child held her body a little away from him. Likewise when the father picked her up, Ms M observed “she again held herself a little away from him and remained slightly stiff in his arms. After a short while, she asked to be put down.”
During the course of the observation the father inquired of the child “how many daddies she had.” She indicated that she had only one father and pointed at the father. Upon the conclusion of the observation she gave her father “a quick hug” but gave her paternal grandmother “a tight hug.” She then went to her mother and C, but returned to the father and grandmother and gave each of them a second hug.
She has not seen her father since that day. Accordingly it is difficult to know to the extent to which her recollection of her father has receded in that time, or how she would presently react to being re-introduced to him.
WOULD THE CHILD BENEFIT FROM A RELATIONSHIP WITH HER FATHER
Ms M was firm in her evidence that the child would benefit from a relationship with her father. She said that that was informed by two matters, firstly, that good things can flow to a child from a good relationship with a parent, and conversely that the lack of such a relationship can lead to adverse consequences. She said that the disadvantages which can flow from not having a good relationship with a parent relate to the formation of adolescent identity. The absence of a relationship with the parent can cause the child to believe that there is something wrong with that parent, which can impact upon the child’s developing self-esteem if they conclude that the “bad parent” forms part of their own make up.
Ms M said that in later life the lack of a parental relationship can impact upon the capacity of the child to form and maintain friendships and relationships, upon academic progress at school, and the capacity to socialise within the school environment. She said it can cause depression and anxiety, and in the worst cases could lead to self-harm.
I accept that evidence and am satisfied that he child would indeed benefit from a meaningful relationship with her father. However those benefits are not warranted if being exposed to her father presents an unacceptable risk of harm to the child.
RISK OF HARM POSED TO CHILD BY FATHER
Overview
The mother relied upon two specific risks in this respect. The first was the risk of direct physical harm to the child by the father, either in the course of excessive disciplining of the child, or if he is under the influence of drugs or alcohol. She also points to the risk of emotional harm to the child in the father’s care, arising again from corporal punishment and perhaps more significantly, the prospect of exposure to family and other violence.
I will consider those matters individually.
Physical harm
It is idle to dispute that the father is a violent man. Moreover he has a long history of criminal behaviour. Dr K, a psychiatrist who assessed the father for the purposes of these proceedings said:
We would have to describe this man as having a severe personality disorder. He has all the traits that we so commonly associate with that formulation. For example, he has been involved in anti-social behaviours from his child and adolescent years right through until now. These entail burglary, theft, alcohol use, drug use, violence within domestic relationships, unstable relationships and a poor work record. He is relatively insightless and tends to deny responsibility for issues well described in the documentation. He also has poor impulse control.
…
.. So I insist that we have to regard him as having a severe personality disorder and the reality is that it is probably likely to continue indefinitely into the future.
While later in his report he did acknowledge there is a prospect that the father may still, notwithstanding his age, “settle down,” Dr K did also point to the fact that as recently as 2013, the father served a jail sentence for breaching a domestic violence order.
Against this background, it is useful to consider the horrifying events which underpinned the father’s 2004 conviction for torture of the child X. In the Court of Appeal decision arising from the Attorney-General’s appeal against the father’s two year sentence (R v [Maynard]; Ex Parte A-G (Qld) [2004] QCA …) at [10] to [14] as follows:
[10] The circumstances of the offence of torture are that on 23 December 2003, the complainant’s mother contacted police, alleging that the respondent had flushed the complainant’s head in the toilet. Police took detailed allegations from the complainant, who alleged (and this was accepted by the respondent’s plea of guilty) that the respondent had been mistreating her for some 4 months. The complainant stated that sometime in late October 2003, the respondent struck her with a belt or extension cord around the legs. She said that she had been punched and slapped by the respondent and that he had forced his fingers down her throat, cutting the back of her throat and making it hard for her to eat and swallow. She detailed conduct by the respondent when she was deprived food, was forced to stand in the corner for hours at a time and forced to stand in very hot showers. She said that the respondent had on a number of occasions forced her head into the toilet when it was flushed. She referred to conduct by the respondent in sending her to bed without wearing clothes and regularly abusing her verbally, calling her a “black shit” or “mongrel so and so”.
When interviewed by police, the respondent admitted that he had treated the child in this manner and, that he had done so on a daily basis over the period in question.
[11] The complainant child was, in addition to the general allegations, able to detail five specific incidents, which the respondent admitted. One concerned an incident in late October 2003, when the respondent became angry with the child, because she had not tidied her room and had hit her hard around the leg 3 or 4 times with an extension cord. Another incident concerned an occasion in early December 2003, when the respondent kicked the complainant in the back of the head, knocking her down and sending her a metre across the room, where her forehead struck a wall. The complainant sustained bruises and scratches to the forehead and complained that her head ached for some time.
[12] The respondent also admitted to an incident on 17 December 2003 when, because the complainant was blocking his view of the television, he punished her by taking her to the toilet, putting her head down it and flushing it. He admitted a further specific incident on 23 December, when he vented his anger with the complainant, because she would not pick up some money that had been dropped on the floor, by flushing the complainant’s head in the toilet a number of times. The respondent admitted that on that occasion the child was protesting and that, in order to scare her, he told her that the water was dirty. He also admitted that he then forced the child to stand in the shower, having turned the water on to maximum heat and having checked that it was hot enough to scald her.
…
[14] A psychologist’s report prepared by Mr [B] after an interview with the child, contains observations as to the effects of the respondent’s mistreatment upon her. The complainant told Mr [B] that she suffered from nightmares of her step-father beating and killing her and her mother. She also had nightmares of monsters chasing and eating her and of being flushed down the toilet. The complainant described symptoms of bed wetting and picking at her skin until it bled. She stated that she felt sad and that she felt “she was bad all the time”. Unsurprisingly, the psychologist reported that there was a strong likelihood that the abusive treatment had had a severe impact on the child and that there may well be long term consequences. The opinion was expressed that the child would require careful monitoring to manage possible adverse manifestations arising from the abuse she suffered.
Unsurprisingly, Dr K asked questions of the father in relation to this episode. He denied that he “actually tortured” X, but “admitted that he may have gone too far with disciplining her” and specifically said that he had only threatened to put her head in the toilet, but had not done so. I reject that assertion by the father. The chilling facts upon which he was sentenced – and hence pleaded guilty – are quite different and plainly in the view of the Court of Appeal, justified a four year prison sentence.
Even accepting that the father’s conduct was in 2004, and that there does not appear to have been any repetition of like conduct thereafter, it nonetheless has to be acknowledged that the facts surrounding his offending are chilling, and the child the subject of these proceedings is about the same age as X was at time of his offending. Moreover the fact that the father appears to wish to be dismissive of the circumstances of his offending does clearly align with Dr K’s view that the father lacks insight.
There is also the worrying feature of this case involving with drugs and alcohol. Although he denied in his interviews with Dr K that he then was drinking excessively, and maintained that “he only has one or two drinks per day but will drink a couple of six packs in the weekend” the father’s failure to maintain engaged with these proceedings meant that these matters were not able to be explored with him in cross-examination. Moreover, although he has briefly engaged with an alcohol counselling organisation, it is unclear the circumstances in which he ceased to obtain their assistance, or any impact which their assistance had.
Worryingly, the father told Ms M that “until recently, he consumed alcohol after work and more than usual if he was feeling depressed. He would have “binges” sometimes twice a week and would often miss one day of work per week. He stated that he had not missed out on work in the recent few weeks.
It appears as though alcohol abuse is still a major feature of his day to day life.
As to marijuana use, he told Dr K that he “would still smoke marijuana sometimes at a party” but told Ms M that “his last marijuana use was approximately one month ago and prior to that about six months ago.”
Also worryingly relevant to this is the lack of clarity as to the circumstances in which the father was wounded one evening in an altercation with his brother during the course of the trial. The fact that the father has thereafter not engaged in the proceedings is perhaps indicative that there was alcohol involved in that incident, but I cannot be sure.
Ultimately I am persuaded that the father presents a substantial risk of physical harm to the child from either excessive physical discipline or from him being under the influence of drugs or alcohol when the child is around him.
Emotional harm
Whist it is correct that there are no allegations of excessive physical discipline levelled against the father since 2004, it does not appear as though the father has recognised the risks of emotional harm which the sorts of discipline which he meted out on X were likely to have. Most worryingly, he told Ms M that he “could not understand how the psychologist could predict that [[X]] might experience some trauma later in life” as a result of his conduct towards her. That appears to me to be a reference to Mr B’s report which I have referred to in reciting aspects of the Court of Appeal’s decision earlier in these reasons. Therefore not only did the father at the time he was administering such alleged discipline to X not appreciate the prospect of serious consequences arising in her later life, but having been told by Mr B of the effect that it had upon the child, and the prospect of it having longer lived outcomes, he still appears insightless as to the seriousness of his conduct.
I am left with some serious reservations about the father’s view of appropriate discipline, and the prospect that he may have recourse to the sort of conduct which he thought was appropriate discipline on X as he did in 2004, if the child the subject of these proceedings required discipline.
That concern was not alleviated by the evidence of the paternal grandmother. For instance she seemed to identify that the father’s “discipline” was not that different from what she had as a child and she said “we all seemed to progress successfully from this upbringing as obedience and respect was taught, not what is shown today within the community.” Moreover she said in relation to the child whom the father pleaded guilty to torturing, “[X] has grown into a lovely employed young lady who hopes to train as a Youth Worker when she accrues enough accreditation, she has no animosity towards [the father].”
Turning then to the prospect of the father again exposing the child to family or other violence, I need scarcely reiterate the father’s appalling conduct from time to time in breaching family violence orders that have applied to him. He has most recently done so as late as 2013. Almost invariably, such family violence as he has perpetrated has been either in the direct presence of the children, or in circumstances where the children were close by and at risk of being directly exposed to it.
Sadly the father appears to think that such violence is justifiable, and again does not appear to appreciate the impact of it upon children. For instance Dr K reports “[the father] was very critical of [the mother] and her behaviour. He admitted that at one stage that he just slapped her across the face in front of the child when they had a disagreement and he told me that in a fairly matter of fact way.” Moreover the father appears to take some pride in the fact that he has no criminal convictions other than for domestic violence for some years. It appears as though perhaps he puts domestic violence in a different category from other crime. Moreover his own affidavits do not appear to recognise the concerns which inevitably must apply when children are exposed to domestic violence. For instance at paragraphs 12 and 13 of his affidavit filed 18 June 2015 he said:
12. I have always been there for [the child] and she comes first in my life not alcohol or substance abuse.
13. I love [the child] and would never harm her. I think she needs to know her father has not left her…
There are two points that are apposite to draw from these paragraphs. The first is that although he identifies that alcohol or substance abuse are in conflict with the proper care of a child, he does not put domestic violence in that same category. Moreover, his assertion that he would “never harm her” appears wholly insightless as to the prospect that he has indeed harmed her by regular exposure to family violence.
There is a more insidious type of abuse however about which there is also concerning evidence. The father is not of aboriginal heritage, but the mother is. Likewise X was of aboriginal descent. I have already observed by reference to the Court of Appeal decision that in part of his mistreatment of X, the father would refer to her indigenous background, in derogatory terms, such as calling her a “black shit”. Allied to this at paragraph 72 of the Family Report, Ms M said:
[The mother] alleged that there was verbal abuse pertaining to her race every day. She alleged that [the father] would “slander” cultural customs, telling her words to the effect of “you live in today, let it go, be civilised.” She alleged that some of this abuse was eventually directed at [the child] to, calling her “a black this and a black that.” [The mother] reached a point where she felt like “I had to defend my blackness.”
As to the impact of such racial slurs, at paragraph 131 Ms M said “there is good evidence that racism is associated with a range of adverse health conditions, such as psychological distress and depression.”
Finally there was the worrying demonstration during the Family Report interviews of the father exposing the child to parental conflict. Whilst the child was spending time being observed with the father, she said “I have photos of [L] and [A] as a baby.” To this the father responded “I know cause there mine and mummy won’t give them back to me.” At paragraph 137 of the Family Report Ms M said that this showed “his willingness to place [the child] firmly in the middle of the parental conflict when he made the comment that her mother had not given photos back to him.”
Evaluation
It can therefore be seen that the following are concerning risk factors associated with the father:
·He presents a risk of both physical and emotional harm from excessive discipline, most graphically illustrated by his conviction for child torture in 2004, which he appears to still not have accepted responsibility for, nor recognised the seriousness of;
·He presents a risk of physical harm associated with his misuse of alcohol and perhaps drugs;
·He presents a risk of emotional harm from the prospect of a child in his care being exposed to family or other violence;
·He further presents a risk of emotional harm to this child by virtue of his tendency to engage in racial abuse during the course of disputes.
Although individually none of these factors may justify a conclusion that the father does pose an unacceptable risk of harm to the child, cumulatively I have concluded that they do.
WOULD THE MOTHER FACILITATE ANY RELATIONSHIP BETWEEN THE CHILD AND THE FATHER
The mother does not appear to have any capacity for civil communication with the father. She does not appear to engage in any form of contact with the paternal grandparents, and she does not appear to have a civil relationship with the mother of the father’s other two older children. Moreover the mother’s present partner and the father appear to regularly trade threats of violence to each other.
Of course the mother has been the victim of quite literally years of domestic violence during the relationship, and which violence has continued after its termination. One could readily understand that against that background, the mother’s disinclination to engage with the father is entirely justified. However in fact post-separation the mother has from time to time continued to allow the child to go into the father’s care, including for periods of some days. That said, the mother has not permitted the child to go into the father’s care since Christmas 2013, although the changeover on that occasion did not apparently involve violence.
I am satisfied on the material before me that the mother would not facilitate, and has no intention of facilitating, any relationship between the child and the father. I am likewise satisfied that she will not in fact facilitate a relationship between the child and her siblings. Realistically the only practical bridge between the child and those siblings is the father.
SECTION 60CC CONSIDERATIONS
It will be appreciated that in discussing the foregoing issues I have already addressed the primary considerations, and some of the additional considerations as well. However the following further observations are also pertinent.
The child is too young to express any views.
The child appears to have a good relationship with her paternal grandmother, or at least did on the occasion of the last Family Report interviews. She appears to have a knowledge of her two half siblings, but the material does not permit me to determine the nature of the present relationship between the child and those two older sisters.
It does not appear as though the father has, at least in recent times, provided any financial support for the child.
The child is of aboriginal descent on her mother’s side, and her mother presents the only practical bridge to enjoying that culture. It appears as though the father has negative views of aboriginal culture and would not support the child’s experience of that heritage.
There have been many instances of family violence and many family violence orders which have applied, and in the father’s case, been breached. The father is simply an habitually domestically violent man.
The Family Report writer recommended a regime of interim orders to be trialled for 12 months. That would inevitably mean that these proceedings would not conclude, but that the litigation would continue.
PARENTAL RESPONSIBILITY
There has been severe family violence. The presumption of equal shared parental responsibility therefore does not apply. The parties cannot communicate. If the parties attempt to do so, or come across each other, it appears as though there is a real risk of family violence again being perpetrated. It cannot be in the child’s best interests to require these parties to continue to interact. There will be an order that the mother has sole parental responsibility for the child.
WITH WHOM SHOULD THE CHILD LIVE
I have already observed that the father has disengaged from these proceedings for whatever reason. The mother is the only person who seeks to have the child live with her. The child has always lived with the mother and since his birth, her sibling. Of themselves those matters would compel an order that the child live with the mother.
However the father could not possibly be considered as a candidate for having the child live with him. His violent history, drug and alcohol abuse and history of child torture (albeit in 2004) would positively disqualify him.
There will be an order that the child live with the mother.
TIME WITH FATHER OR FAMILY MEMBERS
This is the nub of this case. Accepting that the father has disengaged, and did not ultimately press for orders that the child spend time with him, I would still need to be satisfied that it is in the child’s best interests that there be an order that the child spend no time with the father.
The following factors favour the making of such an order:
·The father presents an unacceptable risk of harm to the child, derived from a combination of both a risk of physical and emotional harm;
·To have a regime which saw the father potentially spending time with the child is likely to further expose the mother to family violence from the father, and hence the child to that violence as well.
On the other hand the following factors weigh against a complete termination of the father/child relationship:
·The unchallenged evidence of Ms M was that the child would benefit from having a relationship with her father;
·It is the only practical bridge for the child to have a relationship with her two older half siblings;
·It is the only practical means by which the child could maintain a relationship with her paternal grandparents and paternal family more broadly.
Ms M recommended that a 12 month trial of interim orders of supervised time should be ordered, albeit when expressing that opinion she was, of course, unaware of the further incident of violence in which the father was hospitalised on the evening of 13 August 2015. However there are some practical issues with supervision. Firstly there is real doubt as to whether in fact the CC Contact Centre would be prepared to accept that supervision of the father’s time with the child, given his horrendous history of family violence and child torture. Certainly there is no evidence which would persuade me on the balance of probabilities that such supervision would be offered.
Secondly there was at some stage in the trial the prospect of the paternal grandparents supervising such time. In her affidavit filed 30 June 2014 at paragraph 16 the paternal grandmother had said “both my husband and I are prepared to provide any sort of supervision that the court felt necessary to re-establish contact between [the father and child] however we do not honestly feel that [the father] needs supervision with his daughter…” In her interview with Ms M, the paternal grandmother is reported as having said “she did not think anybody should be able to tell a parent they cannot see their child.” The paternal grandmother gave evidence before me, prior to the father disengaging from the proceedings. In her evidence she was pressed about the practical difficulty as to how she could effect control of the father, particularly if he were intoxicated and violent. She appeared to either be naïve as to the risk he posed, or in denial.
There can be no doubt that the level of supervision which the father needs would be intense. For instance it would need to be ensured that the father is not under the effect of drugs or alcohol at any time he spent with the child. It would need to be in circumstances where the child was wholly protected from any domestic violence, or any racist slurs. I am not persuaded that the paternal grandmother is an appropriate candidate.
I have also given some thought as to whether there should be orders enabling the child to spend time with the paternal grandparents, but away from the father. This was a matter which the paternal grandmother was asked about, and she indicated that if there were an order allowing her to spend time with the child, she would ensure that either that time was not undertaken in the father’s presence, and would not permit the father to intrude on any such time.
On a practical level that is difficult, or at least on the state of the evidence as at August of this year was problematic, as the father was then living with the paternal grandparents. Whether he continues living to do so after the altercation with his brother is unknown.
However the further problem again is that the father has disengaged from the proceedings, and I was told without objection from the bar table that the paternal grandmother had earlier in the proceedings taken advice as to whether she should intervene in the proceedings, but had declined to do so. In those circumstances I am not persuaded that this is a case where orders in favour of the paternal grandparents should be made without them being parties.
Upon balance, and with considerable reluctance, I am satisfied that the orders contended for by the mother and the Independent Children's Lawyer are in the child’s best interests in this case. My reluctance stems from the fact that the child will now likely never have a relationship with her father or the paternal family more broadly, including her two half-sisters. Whilst one could justify her not having a relationship with the father, given the many negative aspects which surround him, the paternal grandparents, the paternal family more broadly, and her half-sisters, have no such disqualifying characteristics, at least on the evidence before me. However an order that the father not spend time with child would not preclude the grandparents from themselves commencing proceedings should they see fit to do so in the future. They could then be the bridge to the child having relationships with the paternal family, including A and L, but absent such an application there is presently no safe, practicable, way for those relationships to continue.
OTHER ORDERS
I am otherwise satisfied that the orders sought by the mother are in the child’s best interests and will make them.
I certify that the preceding one hundred (100) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 12 November 2015.
Associate:
Date: 12 November 2015.
MAYNARD & ORR [2015] FamCA 998
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