Morgan and Carter
[2016] FCCA 289
•26 February 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MORGAN & CARTER | [2016] FCCA 289 |
| Catchwords: FAMILY LAW – Final arrangements for care and parenting of child aged four years – child currently lives with mother and maternal grandmother – child believes maternal grandmother is his mother and mother is his sister – mother alleges child conceived through act of rape by father following brief relationship – father alleges charge of rape was concocted by mother and she engaged in relationship with him with the intention of conceiving a child as her mother’s surrogate – father seeks to spend time with child through therapeutic introductory process – mother opposes child spending any time with child and seeks order for sole parental responsibility – meaningful relationship – family violence – best interests. |
| Legislation: Family Law Act 1975, ss.4AB(1), 60B, 60CA, 60CC, 61B, 61C, 61DA, 64B, 65C, 65D, 65DAA, 68LA Evidence Act 1995, s.140(2) |
| Fox v Percy (2003) 214 CLR 118 Briginshaw v Briginshaw (1938) 60CLR 336 WK v SR (1997) FLC 92 -787 Jones v Dunkell (1959) 101 CLR 295 B v B: Family Law Reform Act 1995 (1997) FLC 92-755 Russell & Russell & Anor [2009] FamCA 28 MRR v GR (2010) 240 CLR 461 Goode & Goode (2006) FLC 93-286 N & S and the Separate Representative (1996) FLC 92-655 M & M (1988) FLC 91-979 Johnson & Page (2007) FLC 93-344 A v A (1998) FLC 92-800 Burton & Churchin and Anor (2013) FLC 93-561 McCall & Clark (2009) FLC 93-405 Mazorski & Albright (2007) 37 Fam LR 518 |
| Applicant: | MR MORGAN |
| Respondent: | MS CARTER |
| File Number: | ADC 4447 of 2013 |
| Judgment of: | Judge Brown |
| Hearing dates: | 11 & 12 August, 2 & 3 September 2015 |
| Date of Last Submission: | 4 November 2015 |
| Delivered at: | Adelaide |
| Delivered on: | 26 February 2016 |
REPRESENTATION
| Counsel for the Applicant: | Ms Lindsay |
| Solicitors for the Applicant: | All Family Law |
| Counsel for the Respondent: | Ms Horvath |
| Solicitors for the Respondent: | Vicki Lehmann & Associates |
| Counsel for the Independent Children’s Lawyer: | Mr Boehm |
| Solicitors for the Independent Children’s Lawyer: | Legal Services Commission of South Australia |
ORDERS
The child X born on (omitted) 2011 live with the mother.
The mother have sole parental responsibility for the child.
All other extant applications are dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Morgan & Carter is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADC 4447 of 2013
| MR MORGAN |
Applicant
And
| MS CARTER |
Respondent
REASONS FOR JUDGMENT
Introduction
X was born on (omitted) 2011, at the (omitted) Hospital, in (omitted). His biological mother is Ms Carter. On X’s birth certificate, against the entry for father, is entered not stated.
There is however, no shadow of doubt that X’s biological father is Mr Morgan. This fact was established by scientific DNA testing, commissioned by the SA Police, in July 2013, following a complaint of rape made by Ms Carter[1] to (omitted) Police on 8 May 2012.
[1] I mean no disrespect to any of the parties in these proceedings or to X’s maternal grandmother. But, in my view, for reasons which will become readily apparent, it is more appropriate to refer to the relevant actors, by their given names, rather than the more usual descriptors of “mother”, “father” and “maternal grandmother”, which are more ordinarily used in reasons for judgment such as these.
Mr Morgan was subsequently charged with the rape of Ms Carter on 16 July 2013 but the charge against him was withdrawn, in the District Court at Adelaide, when the Director of Public Prosecutions, Mr Kimber SC, declined to proceed with the charge, notwithstanding the fact that Mr Morgan had been committed to stand trial, for the charge, by the Adelaide Magistrates Court.
Mr Morgan has never met X. As a consequence, there is no paternal relationship whatsoever between the two. At present, X believes that his maternal grandmother, Ms S, is his mother and Ms Carter is his sister. It is Ms Carter’s case that she was rendered emotionally incapable of parenting X, following her rape and, in these circumstances, it was decided Ms S would assume the maternal role for him.
It has been Mr Morgan’s position, throughout these proceedings, that the charge of rape against him was concocted by Ms Carter, in collaboration with Ms S, in order to dissuade him from attempting to pursue any form of relationship with X and to conceal Ms Carter’s true motivation for pursuing an intimate relationship with him in the first place, which was to conceive a child, whom Ms S could parent.
Mr Morgan was born on (omitted) 1970. He is not a wealthy person. He works as a (occupation omitted). He has never been married and has no children, apart from X. He has been involved in few significant romantic involvements, during his life, to date. At 45 years of age, his chances of becoming a father again must be regarded as remote.
Ms Carter was born on (omitted) 1985. Currently, she lives with Ms S and X, in suburban Adelaide, whilst she studies (course omitted) at (omitted). It has been her position, throughout these proceedings, that she is vehemently opposed to abortion. As such, she would not countenance a termination when she discovered she was pregnant with X.
Ms Carter and Mr Morgan met in (omitted) 2010, through a common friend. Ms Carter asserts that thereafter, they had a brief sexual relationship, which was not particularly serious, from her perspective. This relationship ended, when Mr Morgan raped her, at some time in either mid-November or early December of 2010, without using a condom, after she had advised him that she wished to discontinue her involvement with him.
Ms Carter concedes that, prior to this incident, she had consensual sex with Mr Morgan, on a number of occasions, during which he always used a condom. Accordingly, it is her case that X was conceived through an act of rape.
As such, it is her position that Mr Morgan has, through his actions, forfeited any entitlement to have any form of relationship whatsoever with X. In addition, it is her view that given Mr Morgan’s violent behaviour, in inflicted non-consensual sexual intercourse on her, it is axiomatic that the child himself can derive no material benefit from any form of engagement with such a violent person.
To the contrary, it is Ms Carter’s view that for X to know anything of the circumstances surrounding his conception, including the actual identity of his father, has the potential to do him untold emotional harm. She concedes that, at some stage, X will need to be informed that she is his mother and Ms S is his maternal grandmother. However, it is her position that she will determine how and when this is to be done and what X is to be told about the identity of his father and the circumstances surrounding his conception.
Mr Morgan has consistently denied having sexually assaulted Ms Carter. Detectives came to his home on 1 June 2013, to arrest him in respect of the charge, following Ms Carter’s complaint. At this stage, to police, he said as follows, in a conversation, which was tape recorded: “I am fighting for custody – this is why she is doing this.”[2]
[2] See Statement of Detective L, dated 15 August 2013, contained in District Court File R v Moore being Exhibit A in these proceedings
It is Mr Morgan’s position that Ms Carter cynically solicited his friendship and thereafter embarked upon a sexual relationship with him in order to conceive a child, as the surrogate of her own mother, Ms S, who was desperate to parent another child, following the death of her husband.
In these circumstances, Mr Morgan asserts that Ms Carter only belatedly made the serious and scurrilous allegations of rape against him, when he became aware of her pregnancy and subsequent birth of X and thereafter made known to her his wish to pursue a relationship with X. Underpinning his case is his assertion that X has a fundamental right to know the identity of his father and engage with him.
It is his case that he has the potential to be a beneficial influence in X’s life because of the biological relationship between the two. He believes this relationship will with time, naturally lead to ties of love and deep affection, which will most likely last as long as Mr Morgan is alive and be of incontestable benefit to X.
In all of these circumstances, he asserts that Ms Carter, in conjunction with Ms S, has behaved cynically, irresponsibly and wickedly, so far as X is concerned and she has neither any proper basis nor entitlement to determine that he (X) will have no natural paternal influence in his life.
This is not a criminal trial, in which the standard of proof is proof beyond reasonable doubt, with its purpose directed towards determining whether Mr Morgan is guilty of raping Ms Carter, to this high evidentiary standard. Rather, it is an enquiry into what is likely to be in the best interests of X.
On any view, the story attaching to any individual’s conception and the nature of the relationship between his or her progenitors is central to that individual’s sense of identity and perhaps also self-worth. In this case, the parties concerned have diametrically opposing views about how X came into being.
The focus of this inquiry is not only on X’s situation now, whilst he is a vulnerable and immature child of four, but continues on into X’s future, as he passes through his early education and on into adolescence. The issue of X’s conception will remain latent indefinitely.
Necessarily, the court must consider the implications of X either being told what his biological mother elects to tell him, based on her view of his conception or what his biological father is able to tell him, based on his view about being deceived by Ms Carter.
At this latter stage, X will inevitably know how children are conceived and, as a consequence, he will also have some understanding of the opprobrium, which attaches to acts of non-consequential sexual intercourse. It is also highly probable that X will have a natural curiosity, about his father, if he has no relationship with him, and will therefore seek him out, perhaps with unpredictable consequences.
What are the possible emotional consequences, for X, if he believes that he was conceived through a violent act of rape are difficult to determine, at this stage, as are his likely attitude towards the person, who is said to have raped his mother.
So are the consequences which will arise, if X subsequently discovers those to whom he is close have misled him about the circumstances surrounding his conception or the identity of his father or indeed his mother. At some stage, it seems likely that X will have to be told that Ms S is not his mother, rather Ms Carter is. Considerations of this nature – how and what X is to be told – are at the heart of this difficult matter.
The only persons, who know precisely what occurred between them, in the latter period of 2010, are Mr Morgan and Ms Carter. No-one else was present and there is scant, if any, circumstantial evidence, regarding the incident. Mr Morgan has made no admission of guilt whatsoever. In these circumstances, it is not surprising that Mr Kimber elected not to proceed with the criminal trial.
Mr Morgan commenced these proceedings on 26 November 2013, concurrently with Mr Kimber’s decision to file a nolle prosequi in the criminal proceedings against him. He seeks to spend initially professionally supervised time with X, in conjunction with a process of therapeutic counselling designed to inform X of the identity of both his father and his mother in a sensitive and child-focused manner. Necessarily, given his position, Mr Morgan would not envisage that X be informed of Ms Carter’s position, as to the circumstances surrounding X’s conception.
Ms Carter responded to this application on 22 April 2014. She seeks the dismissal of Mr Morgan’s application other than that the court make an order that X live with her and she have sole parental responsibility for him.
It is her position that it is she, in conjunction with Ms S, who should decide what X is told about the circumstances surrounding his conception and when he is told it. In these circumstances, it is her view that she should decide whether X should have any professional counselling and what form it should take. To all intents and purposes, she wishes to ensure that she is the only conduit through which X will learn of his paternity, if at all, and whether X has any form of relationship with his biological father.
Accordingly, the central dilemma in this case, is readily discernible. Both Mr Morgan and Ms Carter are likely to wish, at least at some time, to seize responsibility for the past, as they each see it, and interpret it back to X, at the time each deems appropriate. What are the emotional implications of this, for X, are currently opaque, but it seems improbable that they will be entirely benign, particularly in terms of his sense of identity.
It seems highly improbable that Ms Carter will recant her position, in respect of her position regarding the circumstances surrounding X’s conception, at any time in the foreseeable future. At best, she will remain mute about it. But any parental relationship, between her and Mr Morgan, must be stilted and replete with tension. It is Ms Carter’s position that she cannot ever contemplate being in a position of being able to communicate directly with Mr Morgan.
Mr Morgan acknowledges that it is difficult to conceive of a more problematic situation, so far as the parenting of a child of four years of age is concerned, than the current case. However, he asserts that he is willing to let bygones be bygones, for X’s sake and never allow Ms Carter’s false allegation of rape to be brought into the child’s life.
At the outset of these proceedings, Ms Horvat, counsel for Ms Carter, submitted that it was not necessary for the court to make any specific finding as to whether the rape did or did not occur. It was her submission that, such a finding was unnecessary, given the focus of the case was on X’s best interests, not on the guilt or otherwise of Mr Morgan.
In one sense, this is correct. However, it would be naive for the court to ignore the issue on what I regard as an extremely artificial basis. Even if, ultimately, given the gravity of the allegation and the extent of the evidence available, it proves impossible for the court to resolve the issue to the prerequisite degree of proof, the issue must remain central to the court’s deliberations.
In my view, the issue cannot be denied because, to a large extent, it is relevant to questions relating to parental capacity and insight and therefore to issues relating to X’s best interests. In addition, from Mr Morgan’s perspective it is relevant to what is just. If the court accepts that he has been wrongly accused, why should he be compelled to forfeit a relationship with his son because of Ms Carter’s lies?
If Ms Carter is correct, Mr Morgan’s behaviour, in seeking to pursue a relationship with X, after the violence he has exerted upon her, can only be characterised as being sociopathic in nature and grossly insensitive to her feelings, both as a parent and a person.
As such, he must be regarded as an imperfect role model for a child of X’s age. In addition, it must also be regarded as highly inappropriate to compel Ms Carter to share a parental relationship with a man, who has violated her so cruelly, no matter how closely circumscribed and controlled that relationship is in future.
On the other hand, if Mr Morgan is correct, Ms Carter is prepared to stop at nothing to achieve her desired outcomes. She was prepared to see an innocent man go to prison, on the basis of her unreliable testimony, quite possibly for many years. If these circumstances are correct, it seems highly improbable that she would not attempt to turn X’s mind against Mr Morgan.
Accordingly, although conceivably Mr Morgan could abide by his undertaking not to broach the circumstances surrounding X’s conception directly with the child, in order to secure his objective of having a relationship with X, it seems improbable that Ms Carter will adopt such a course, regardless of which scenario is true. Her only motivation for not telling X the truth, as she sees it, can only be an altruistic one relating to a desire not to cause X emotional distress.
However, given the mutual suspicion and mistrust, which both parties must inevitably hold for one another, when coupled with their obviously compromised capacity to communicate directly and effectively with one another, it is difficult to conceive how they would be able to maintain a common front, on an indefinite basis, so far as what X is told about their prior relationship with one another.
How a court determines a child’s best interests is through the application of a complex matrix of considerations, principles and objectives contained in Part VII of the Family Law Act 1975 (Cth) (“the Act”). The first objective, underlying Part VII, is contained in section 60B(1)(a), and reads as follows:
“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.”
The first principle, which underlines this object, as well as another three, is contained in section 60B(2)(a) and reads as follows:
“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.”
It is Mr Morgan’s position that X’s theoretical right to know and be cared for by him, as his father, supersede the disastrous circumstances surrounding his parent’s current lack of any viable relationship with one another and, as such, it is the court’s responsibility to create some mechanism through which X can be introduced to him.
On the other hand, it is Ms Carter’s position that it is self-apparent that X will derive no benefit, certainly not in the sense of having a meaningful level of involvement, if she and Ms S are compelled, against their wills, to facilitate some form of relationship between X and his father, at the court’s direction.
Given this brief introduction, it is clear that there is nothing commonplace about this case. It can only be regarded as extraordinary. In these circumstances, at an early stage, it was directed that X be independently represented in these proceedings.
Through such representation, I hoped to be provided with an independent perspective on how X’s interests would be best served, in what I regarded as largely unprecedented circumstances. In addition, I was desirous that all the evidence, which would be presented to the court, should be rigorously tested from a perspective independent of the parties’ themselves.
The Independent Children’s Lawyer appointed, for X, is Mr Terry Stephen, an experienced family lawyer employed by the Legal Services Commission of South Australia. Mr Stephen briefed Mr Boehm, a barrister, to appear on his behalf in these proceedings.
Pursuant to section 68LA(2) of the Act, Mr Stephen and Mr Boehm are required to form an independent view, based on the evidence available to them, of what is likely to be X’s best interests.
In his written submissions, to the court, Mr Boehm seeks orders that X not spend any time with, or communicate with his father. It is his position that, if the court was to make orders along the lines proposed by Mr Morgan, it would very likely expose X to emotional and psychological harm because neither Ms Carter nor Ms S would be capable of supporting such an outcome.
In addition, it is Mr Boehm’s position that to involve both X and Mr Morgan, in some form of therapeutic counselling, would be fraught with all manner of difficulties, some currently foreshadowed, others possibly not. It is his submission that the evidence currently indicates that Ms Carter is in a fragile state of psychological health and, as a consequence, could not safely herself engage in such a process. In addition, it is her evidence that she would actively attempt to discourage X taking part in such therapy, if it was anticipated that, at any stage of it, Mr Morgan would become involved.
It is also part of the Independent Children’s Lawyer’s role, pursuant to the provisions of section 68LA(5)(c) of the Act to commission, when appropriate, an independent and expert report, directed towards examining how the interests of any subject child may best be served.
In this case, Mr Stephen has commissioned Mr D, a social worker, to prepare such a report. I was particularly interested to know if there was any body of professional literature, which dealt with the issue of what sort of contact, if any, the progeny of unlawful sexual assault should have with their progenitors.
In this context, Mr D referred to literature relating to children conceived through anonymous donor sperm, who commonly had a deep yearning to have some form of relationship with their genetic progenitors. In addition, Mr D provided evidence regarding the possible psychological sequelae for children, who subsequently learnt that they had been misled by a parent, or some other significant person, about the true circumstances surrounding their conception.
On the basis of this literature, it was Mr D’s view that honesty to a child, about such matters, was usually the best policy. He further opined that it was a common scenario for a child, in later life, to want to search out for his or her father and, as such, it was better that the truth came out sooner rather than later, so that it could be properly managed.
In an addendum to his report, Mr D wrote as follows:
“… On balance, it would be in X’s long term psychological interests to be able to have a meaningful relationship with his biological father. Whilst contact between X and his father would have implications for Ms Carter's [sic] psychological well-being, I believe X’s right to have a relationship with his father is paramount.”[3]
[3] See Affidavit of Terence Stephen filed 10 December 2014
Mr D agreed with a proposition, which was put to him during the course of the hearing, that it was only a matter of time before X asked one of his carers, “who and where is my dad”. Mr D was further of the view that the issue could not be contained indefinitely and that the best policy was for the child to be told, “the truth”.
To do otherwise, when X subsequently discovered that he had been misled – an outcome which Mr D considered inevitable – X would be angry and alienated from those whom he perceived had lied to him to achieve their own ends. Mr D considered that the child’s anger, particularly if it arose in adolescence, had the potential to be both longstanding and lead to unpredictable and erratic outcomes.
Given his view that X needed to be told the truth about his background, including the actual identity of his mother, Mr D envisaged two possible scenarios, in which this could occur. Firstly, if it was determined that X would have no relationship with his father, he would need to be told something about his father to explain his perpetual absence from his life. He would also need to be told that his grandmother was not his mother.
Secondly, if was decided that X should have some form of relationship with his father, any introduction between father and child would have to be very carefully managed under the auspices of a skilled therapist.
In both such scenarios, the question, which arises, is whose truth should be told to the child. If Mr Morgan is involved in such a process, it seems inevitable that the divergences between his truth and that of Ms Carter will emerge, with the consequence that X may, at some stage, be placed in the position of having to judge the veracity of his parents. Again, a process the outcome of which cannot easily be measured.
Mr Boehm favours the first scenario – that is X being informed of his parentage through a process which excluded his father but which was also therapeutically overseen. In this context, Mr D recommended that Ms S and Ms Carter engage with Dr M, an experienced reunification counsellor.
Dr M did not give evidence in these proceedings. Accordingly, I am unable to assess what difficulties she personally is likely to foresee in any such process of reunification. In his final written submissions to the Court, Mr Boehm proposed as follows:
“That the mother, at her sole cost, forthwith make an appointment with Dr M at the Attachment Relationships Centre and attend all appointments with Dr M as requested of her by Dr M.
That the mother follow all reasonable directions of Dr M or such other expert as nominated by Dr M including X’s participation in therapy in relation to:
a.How and when X is informed about who is his mother;
b.How and when X is informed about who is his father;
c.Any other relevant matter as may be determined by Dr M.”
As previously indicated, Mr D is more in favour of the second scenario – that is Mr Morgan is involved in the process of reunification counselling, with a view to him being personally introduced to X and the two spending time together. He is open to the involvement of Dr M in this process.
Mr Morgan’s counsel proposes the following orders, in her final written submissions to the Court:
“That the mother comply with all reasonable directions by Dr M as to information being given to the child.
That the father comply with all reasonable directions by Dr M as to information being given to the child.
That except subject to the advice of Dr M, the parties are restrained and injunctions are hereby granted restraining them each from discussing the parentage of X with or within hearing of X or from permitting any other person than Dr M from so doing.
That upon X being told of his maternity, the parties shall in writing by their solicitors jointly request a series of appointments with Dr M directed towards introducing the father to the child.
That the mother shall take or shall cause the child to be taken to all appointments as may be directed by Dr M.
That the parties shall take steps, pursuant to the advice of Dr M, to advise X as to the identity of his father.
That upon X becoming aware of the identify of his mother and father, the parties shall participate in intake sessions at the (omitted) Children's Contact Service Supervised contact programme.
That the father spend time with X on each weekend for not less than 2 hours as may be facilitated and directed by the (omitted) Children's Contact Centre for a period of not less than fortnightly visits.
That following upon the completion of the father’s time for supervised visits, the father and X spend time together each alternate Saturday morning at the (omitted) Children's Contact Service Kids Connect programme for a period of not less than 6 months.
That following upon the completion of 6 months participation in the Kids Connect Playgroup programme, the parties and their legal representatives and the Independent Children’s Lawyer participate in a family dispute resolution conference to be conducted at the Legal Services Commission with a view to establishing a regime of time for the father spending time with the child which is child focused and age appropriate.
That, consequent upon the steps ordered above, in the failure of agreement being reached after participation in family dispute resolution counselling, the parties are each at liberty to bring an application to this Honourable Court as to the time the father shall spend with X.”
Underpinning Ms Lindsay’s proposed orders is her contention, on behalf of her client, that the evidence available to the court indicates that the rape did not take place. As such, it offends both principles of fairness and justice that Mr Morgan should not have any relationship with X as well as the objectives underpinning the Family Law Act that children have an entitlement to know and have a relationship with both their parents, regardless of the circumstances surrounding their conception.
It is her further submission that her client’s position properly reflects the sensitivity of the situation, so far as both X and Ms Carter are concerned. It is her submission that the process, through which she proposes that X be introduced to his father, is cautious, controlled, incremental, and above all, child focused.
Ms Horvat, Ms Carter’s counsel, rejects any need for the court to be directive so far as what X is told and the manner in which he is told it. In particular, Ms Horvat, on Ms Carter’s behalf, rejects any need for the court to mandate specific therapeutic counselling for X, either through the aegis of Dr M or otherwise.
It is further Ms Horvat’s submission that it is not necessary for the court to make any specific finding, as to the truth or otherwise of the rape allegation. Rather, it must remain focused upon its primary and fundamental obligation of determining what is best for X.
In this context, Ms Horvat points to the incontrovertible fact that currently X is living in a household with his maternal grandmother and mother, who in tandem, provide his primary care and will do so for the foreseeable future. As such, it is Ms Horvat’s submission that the court needs to look at the primacy, from X’s perspective, of these two relationships and put in place orders which support them.
It is Ms Horvat’s submission that the evidence, currently available to the court, unequivocally indicates that Ms Carter is not psychologically capable of being involved, in any way whatsoever, with a process leading to the involvement of Mr Morgan, in her life, no matter how tangentially.
Accordingly, it is Ms Horvat’s position that the perils of the proposed reunification grossly outweigh its benefits. Paradoxically, Ms Horvat submits that such a process may result in X losing his relationship with his mother because she cannot bear being involved with X, if he spends time with his father.
In this context, Ms Carter relies on evidence provided by Mr M, who is a clinical psychologist, who has treated Ms Carter since May of 2014. Mr M diagnosed Ms Carter as suffering from a post-traumatic stress disorder, associated with a major depressive order of moderate intensity.
These proceedings are designed to resolve this multi-faceted dispute. Given its complexities, the various considerations relevant cannot be manipulated, like the surface of a Rubik’s Cube, to achieve a perfect outcome. Whatever is the outcome, in my view, it will be an imperfect one, which raises as many questions as those it attempts to answer. Throughout this process, I must remain focused on X and his best interests, which are my paramount concern.
It is not my role to pass moral judgement on either Mr Morgan or Ms Carter. Yet their conduct has created this moral dilemma, which is likely to have significant implications for the emotional wellbeing of X and his sense of who he is and where he comes from, for the remainder of his life.
In this context, it seems likely that this dilemma will, in time, become X’s dilemma and he will have to grapple with his parent’s competing versions regarding the circumstances of his conception. If Mr D’s opinion is correct, it seems highly probable that, at some stage, X will have a deep need to know about his father and will seek him out, in some way.
If such a scenario is correct, it seems inevitable that, at some stage of his life, X will become aware of his parents’ diametrically opposing accounts of how he came to be. How he will reconcile these views or whose he will prefer cannot be known, at this time. Nor can the emotional consequences for him of this state of affairs be known.
In this context, these reasons for judgment may assume some historical importance for X. They will remain permanently, on his parents’ file, which will be archived for the indefinite future. Although I cannot be certain that X will ever read these reasons for judgment or even be interested in them, I must take great care with them, out of respect for him, bearing in mind, at all times, that he had no part in the creation of the current dilemma, which currently confronts the court.
The evidence
In these reasons for judgment, findings of fact are made on the balance of probabilities, from my observation of the demeanour of each of the witnesses concerned.[4] I have tried to reach my conclusions on credibility and reliability on the basis of contemporary materials, objectively established facts and importantly, on the apparent logic of events.[5]
[4] See Evidence Act1995 (Cth) at section 140
[5] See Fox v Percy (2003) 214 CLR 118 at 129 [31] per Gleeson CJ, Gummow and Kirby JJ
In addition, I bear in mind section 140(2) of the Evidence Act, which indicates that in applying this standard of proof, I am entitled to consider the nature of the subject-matter of the proceedings and the gravity of the matters alleged.
These criteria reflect the well-known comments of Dixon J, in the case of Briginshaw v Briginshaw[6] as follows:
“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.”
[6] Briginshaw v Briginshaw (1938) 60CLR 336 at 362
In WK v SR the Full Court emphasised the very high standard of the Briginshaw test and the disastrous results for a child of any erroneous findings that might lead to the cessation of a possibly beneficial relationship. The court said as follows:
“The risk that the Court will find heinous behaviour where none has occurred needs to be borne in mind at all times. The harm and injustice that flows to both parent and child from an erroneous positive is almost too horrible to contemplate.”[7]
[7] See WK v SR (1997) FLC 92 -787
It is difficult to conceive of a family law case, which contains more serious allegations than the present one. Ms Carter contends that she was raped and is now being further brutalised by her sociopathic assailant in his misplaced attempts to engage with X. On the other hand, Mr Morgan contends that he is the victim of a cynical and cruel trick to conceive a child for the benefit of Ms S.
As a result of this level of complexity, it is likely to be fatuous for the court to decide the case on the basis of findings of credit, relating to the parties themselves, alone – that is the court believing one parent over the other, on the basis of presentation in court. In effect, determining one is truthful and the other is not.
It is, I think, becoming increasingly recognised that it is difficult, if not impossible, for courts to make findings of fact about myriad complicated issues, through the imperfect tool of assessing evidence provided in the artificial (and to many intimidating) confines of the witness box and through the reading of formal and often professional prepared affidavits.
In this case, I am well aware of the moment of any finding, which I may make, regarding the truth or otherwise of the rape allegation, not only for the parties themselves but also for X. The resolution of the issue, if it is possible, must have some ramifications for whether an attempt is made to introduce him to his biological father.
However, notwithstanding these difficulties, my impressions of the parties, in the witness box, must be the starting point before I attempt a more forensic assessment of the evidence, including the relevant documentary evidence.
Mr Morgan presented well as a witness. He is not a sophisticated person and seemed to me to be completely guileless. During his evidence, he wore his heart on his sleeve. His denial of having raped Ms Carter was consistent and convincing.
His evidence was frequently moved by powerful emotion. He described X as my son. He indicated a desire to have X in his life. He said, above all else, he wanted to be able to pick up X and have fun with him.
I have absolutely no doubt, whatsoever, that these sentiments are genuine. In this context, I do not believe that he has instigated these proceedings in order to punish Ms Carter in some way or exert some degree of control over her.
If I have any criticisms of Mr Morgan whatsoever, it is that he is somewhat naive and has underestimated the scope of the difficulties, which confront him. It was Mr Morgan’s evidence that he will do whatever it takes and follow any professional advice given to him to achieve some form of relationship with X.
Mr Morgan is not a wealthy person, earning approximately $50,000 per annum. He deposed that he was willing to spend a significant portion of his income, in respect of counselling, if it was deemed necessary, for him and X.
In his evidence, Mr Morgan indicated that he had not read Mr M’s report or indeed any of Ms Carter’s affidavit evidence. His rationale was that he refused:
“to read her affidavits because they are just based on pure lies and I am not going to upset myself reading what someone has viciously wrote about me … it’s got no place in my mind. It’s got no place in X’s mind.”
From Mr Morgan’s perspective, unless he is either completely misguided or a consummate liar, he has no conception as to why Ms Carter has fabricated her allegations against him. His only explanation, for her behaviour, is that she is mentally unstable.
Notwithstanding this state of affairs, Mr Morgan indicated a willingness to “forgive and forget”. Accordingly, although I consider that Mr Morgan may be naïve, he did not present as a vindictive person. To utilise Mr Morgan’s own phraseology, he asserted that he was prepared to wipe the rape allegation from his mind because he was focused 100% for [his] son.
Overall, the loss of having a parental relationship with X seemed to matter overwhelmingly more for Mr Morgan that issues to do with his possible loss of freedom; financial implications; and any rancour, which he felt for Ms Carter. I did not think that the intensity of these feelings was feigned, or that he had any ulterior motive for professing them.
In short, Mr Morgan presented as a naif, who was incapable of deception. He also presented as a person with a conviction that, with mutual goodwill, all problems could be solved.
In this context, he was asked to consider a scenario in which Ms Carter was not willing to forgive him and forget what she said had happened in the past. In my view, the following passage of evidence is illuminative of Mr Morgan’s attitude:
“Q:So that comes to the question: how are you and Ms Carter going to have any viable parenting relationship for this little boy? You can’t, can you?
A:I can – we can, because as long as he’s not being – his mind isn’t being polluted from her, or whoever – well, that makes – see, for me I see it – it’s like from the day dot they decided, ‘X’s not going to have a dad’. And, I mean, who in their right – who has the right to say that?”[8]
[8] See transcript at page 37
Although Mr Morgan asserts that he is willing to erase the issue of the circumstances surrounding X’s conception from his mind and not raise it with X, he acknowledges that there is a real risk that Ms Carter will not do similarly. In these circumstances, it seems to me to be highly improbable that Mr Morgan will not assert his version of the facts or otherwise defend his reputation. At a deep and visceral level, it is Mr Morgan’s perspective that he has been shamefully wronged by Ms Carter.
The proposition that an attractive 25 year old women would solicit a 40 year old man, in order to procure a child for her 41 year old mother, strains credulity. But so does the proposition that the same women would embark upon such a relationship clandestinely, in order to avoid the mockery of her peers, with a person with whom she had no romantic interest, just because she wanted, “sex without strings”.[9]
[9] See transcript at page 170
Ms Carter largely gave her evidence in a flat and emotionless tone. She maintained her position that she began to have, what she regarded as frequent and commitment-less sex with Mr Morgan, shortly after she met him.
She conceded that a person in Mr Morgan’s situation was likely to have been flattered that a person of her age was interested in having sex with him. In this context, she adopted the description of meaningless babble to the contents of letters, which she wrote to Mr Morgan, which contained a number of endearments.
Ms Carter maintained her position that she had been raped by Mr Morgan, after she had informed him that the relationship was at an end and this was the first time that she had ever had unprotected sex with him. Her assertions, in this regard, were consistent and forceful.
Ms Carter lost her composure on a few occasions. She became both teary and angry, when it was suggested that she had concealed the alleged rape and lied about being a surrogate for her mother because the incident (the rape) had not occurred. In this context, she said as follows:
“Q:You didn’t tell them that the [sic] was the rapist, did you?
A:No. I didn’t want anyone to know. I was embarrassed and I felt stupid. I still feel stupid. I feel stupid for being in this position right now and there is a child to think about, a child who we have made decisions based on his best interests. We told people what we told people so they wouldn’t judge him or ostracise him based on the fact that he is a rape baby. I don’t want him being labelled. I don’t want people to feel sorry for me or sorry for him. I just want him to have a chance at a normal life – a normal life. And he has male role models. I would love for him to have a father who is caring and loving, but his father is none of those things and I know that first-hand.”[10]
[10] See transcript at page 116
Throughout her evidence, Ms Carter presented as an intensely private and thoughtful person, who was struggling to come to terms with a horrible ordeal. There were no obviously contradictions or flaws in her evidence. Ostensibly, she appeared just as convincing as Mr Morgan had done.
If this had been a criminal trial and I had been sitting as a judge, without a jury, in it, I have no doubt that I would have been satisfied beyond reasonable doubt, that Mr Morgan was not guilty to the rape. I would have reached this conclusion because of the lack of corroboration of Ms Carter’s complaint and its lateness; and Mr Morgan’s complete denial.
However, as I am pains to point out, this is not a criminal trial and I am not strictly speaking bound to make a finding as to whether the rape is more likely than not to have occurred, bearing in mind that such a finding is not to be based on inexact proofs, indefinite testimony, or indirect inferences.
As I observed at the outset, the only two persons, who know exactly what happened between them, are Mr Morgan and Ms Carter. In my view, given the dichotomy arising from their different positions, it is inconceivable that they are at cross-purposes or have misinterpreted what occurred between them. In my view, one of them must be lying.
In this context, I was left with a much greater sense of misgiving about Ms Carter’s evidence, when taken into conjunction with that of Ms S, than I was in respect of Mr Morgan’s evidence. In my view, there are simply too many coincidences, arising from Ms Carter’s case, which caused me to question her overall credibility.
However, I also concede that I must approach the process about making findings about matters of sexual morality, with the utmost degree of caution, whilst remaining aware that I, like everyone else, is subject to a range of unconscious biases, arising from my sex, age and background.
I am also well aware of the prevalence of sexual assault, in Australian society generally, particularly males on females. However, at the end of the day, I do not regard Mr Morgan’s account of what he asserts occurred to him as being either outlandish or inconceivable. In my view, without any unnecessary forcing or manipulation, the pieces of this strange jigsaw fit together, as he would have it.
The other significant witness was Ms S. I expected her to be highly protective of Ms Carter and supportive of her evidence and so she was in her presentation to the court. I can also understand why she would be reluctant to reveal details of her own difficult past.
However, at times, some of her evidence seemed to me to be glib and contrived. One portion of her evidence is emblematic of this. By way of explanation, as to why she had not been more proactive in seeking out counselling for Ms Carter, she indicated that she and her family, in effect, knew most of the professional people in Adelaide and they would share information about Ms Carter’s situation with others.[11] This generalisation seems to me to be both improbable and untrue.
[11] See transcript at page 100
In addition, during her evidence, Ms S referred to Mr Morgan as “the rapist”. In these circumstances, the prospect of her assisting any process of therapeutic introduction between X and his father voluntarily and proactively appears remote.
In addition, I consider it improbable that Ms S would be able to restrain making such expressions of antipathy for Mr Morgan, for any indefinite period, in the presence of X, if Mr Morgan assumed some form of presence in X’s life, as a consequence of these proceedings.
a)The background of each of the parties and of Ms S
Mr Morgan was born in (omitted) on (omitted) 1970. He grew up in (country omitted), where most of his family continue to live. He has a sister, who previously lived in Adelaide but now lives in the (omitted). She has a number of children, with whom Mr Morgan shares a close relationship.
Mr Morgan owns his own home in (omitted) and is currently employed as a (omitted). As previously indicated, he earns approximately $50,000 per annum. There is no suggestion that he has any issues in respect of substance abuse or anti-social issues. Up to this point, he has led an unexceptional life.
Ms S has faced many challenges in her life to date. I have no doubt that Ms Carter, in turn, has been affected by these issues. Mr Morgan’s solicitors subpoenaed both Ms S’s and Ms Carter’s medical and police records. As a consequence, both were extensively cross-examined about issues arising in their past lives by Ms Lindsay, who terms this history inter-generational trauma.
Ms Lindsay is critical of both Ms S and Ms Carter for not being more forthcoming about issues arising from their shared history. It is her submission that this history may explain why the two have created such a large scale deception, in order to secure a child for Ms S.
I did not find Ms S to be an impressive witness. I found her to be evasive at times and at other times glib in her evidence. I appreciate, however, that she found it deeply offensive to be questioned about unpleasant aspects of her life, some of which had occurred over 20 years ago, during her marriage to Ms Carter’s father.
Besides Ms Carter, Ms S has two other younger children. They are A, currently aged 24, and B, currently aged 21. The late Mr Carter suffered from a condition known as brittle diabetes, which caused him to have extreme swings in his blood glucose levels. This had implications for his mood.
Both Ms S and the late Mr Carter had issues to do with alcoholism. Mr Carter’s alcohol use was problematic, so far as his psychological state was concerned. Ms S concedes that her late husband often became verbally angry and hit out at walls or doors. She denies that he ever assaulted either her or the children. She accepts that Ms Carter was exposed to this behaviour.
Ms S also concedes that she was an alcoholic. The late Mr Carter attempted suicide, in (omitted) 1995, through the ingestion of snail bait and an attempt to hang himself. In 1995, Ms S and the late Mr Carter separated. He died in 2003.
Following the death of Mr Carter, Ms S became depressed. She was also diagnosed, by her general medical practitioner, Dr S, as suffering from post-traumatic stress disorder. In this period, Ms S contracted a dependency on paracetamol and codeine, which she was able to obtain over the counter.
Following B’s birth, Ms S underwent a tubal ligation, in order to prevent the conception of any further children. In August of 2005, she approached Dr S to explore the possibility of having the procedure reversed. She described, to Dr S, that she had a strong urge to have more children. Ms S was born on (omitted) 1969. Accordingly, at this stage, she was 36 years of age.
The tubal ligation was successfully reversed and thereafter Ms S began a course of IVF. She agreed that this process was onerous, both emotionally and physically. It involved the assessment of not only her, but also of her children.
The process of IVF involved the fertilisation of one of Ms S’s ova with sperm from an anonymous donor. Thereafter, the fertilised ova was implanted into Ms S’s uterus. She became pregnant in late 2007, but unfortunately suffered a miscarriage. Understandably, both Ms S and Ms Carter were upset by the miscarriage.
Ms S undertook five cycles of IVF. She ceased with the procedure, in (omitted) 2009, shortly after her 40th birthday. She was advised that it was unlikely that she would conceive in future. It is Ms S’s evidence, which I accept, that she accepted this prognosis.
Whilst in the grip of her alcohol addiction, in August of 1995, Ms S was arrested by police, in the early morning, in the CBD area of Adelaide, whilst drunk and disorderly. She apparently declined to give police her name and address. Later, she indicated that she had done so because she had been raped by a detective, when she was 13. Around this time, Ms S was also detained pursuant to the provisions of the applicable mental health legislation.
It is Ms S’s evidence that she was very upset about how the police treated her, on this occasion. She has an incomplete recollection of the incident now. I reject any submission that the fact that Ms S was intoxicated, in 1995 and told a lie to police, when she was in a difficult situation, has any bearing or relevance to the current proceedings.
However, Ms S also concedes that the conclusion of the IVF process did not lead to any abatement of her desire to have another child. In these circumstances, she explored the option of becoming an Aboriginal Foster Carer. Ultimately, in 2010, she was approved to be a respite carer.
Ms S’s evidence was that she was not interested in being a respite carer because she would have been uncomfortable in returning children, following such a respite, to parents whom she knew were capable of abusing them. She denied the suggestion that she failed to follow through with her plans in this regard because they fell short of her expectation, so far as the care of the children concerned.
Ordinarily, I would be disinterested in exploring, in any detail, these difficult and personal aspects of Ms S’s life. However, this is not an ordinary case. It is my finding that Ms Carter and Ms S share a very close relationship.
Ms Carter was well aware of her mother’s strong desire to have a child and supported her through the medical procedures involved in it. In my view, these matters are relevant, when the court comes to assess the competing accounts regarding the relationship between Mr Morgan and Ms Carter, and what happened afterwards.
Given what I have outlined some of the salient details of Ms S’s marriage, there can be no doubt that Ms Carter had a difficult and disrupted adolescence. It is to her great credit that she has been able to complete her secondary education and progress to tertiary studies. At present, she is engaged in a (studies omitted) in (omitted) Studies. She is in her fifth year of a six year course. She has deferred her studies from time to time. When she met Mr Morgan, she was working at (employer omitted).
Ms Carter was born in (omitted), South Australia, on (omitted) 1985. In her trial affidavit, she deposes as to having a wild adolescence. She ran away from home, when she was aged about 13 and spent some time in foster care, as a result of the involvement of the child welfare authorities. She describes this as a “horrible time in [her] life” during which she isolated herself from her family.
Ms Carter attends Dr S, as her general medical practitioner and has done, with some interruptions due to the doctor changing practices, since she was 13 years of age. She regards Dr S as an excellent doctor, whom she trusts. Dr S treated her during her pregnancy with X.
At other times, Ms Carter has consulted Dr T, at the (omitted) Clinic. In 2007, Dr T diagnosed her with depression and prescribed antidepressants. In 2010, Ms Carter was referred to the Neurological Unit, at (omitted) Hospital, for further testing, after she had complained about difficulties in concentrating and remembering things.
No physiological disorder was discovered. The evidence does not allow me to make any connection between these matters and the truth or otherwise of the allegation of rape.
(b) Mr Morgan and Ms Carter’s involvement with one another
Mr Morgan lives at (omitted). Ms Carter lives in the adjourning suburb of (omitted). A gentleman by the name of Mr J, lived next door to Ms Carter. He was also a friend of Mr Morgan’s. Mr Morgan visited Mr J’s home from time-to-time.
In October 2010, Mr J had a girlfriend called Ms B. From the father’s perspective, Ms B told him that Ms Carter was interested in him and had asked her to give him (Mr Morgan) her telephone number.
It is Ms Carter’s recollection that Ms B asked her to provide her telephone number. However, Ms Carter also confirms that she understood that Ms B intended to give it to Mr Morgan, so he could contact her. By necessary implication, Ms Carter did not object to being contacted in this way.
As a consequence of these events, Mr Morgan sent a text message to Ms Carter, to which she replied. The two exchanged messages between one another. Ms Carter asserts that she felt overwhelmed by the volume of text messages, which Mr Morgan sent to her. Nonetheless, the two arranged to meet.
It is Mr Morgan’s evidence that, in one of her earlier text messages to him, Ms Carter indicated that she wished to be “friends with benefits” with him. As I understand it, the expression indicates a sexual relationship, with no deep levels of intimacy or long term commitment. Mr Morgan is no longer able to retrieve his text messages from this period.
On the other hand, it is Ms Carter’s evidence that it was Mr Morgan who pestered her for a sexual relationship, to which she agreed, provided it was clearly understood that it would not lead to pregnancy and the two would not openly socialise together.
In her evidence, Ms Carter attempts to portray Mr Morgan as an emotionally needy person, who had no friends, and who was very lonely. It is her case that she agreed to have sex with him, provided no-one knew about it, including family and friends, because of the age difference between them. In cross-examination, she said as follows:
“I didn’t want to tell anyone I was seeing this man for sex, because that’s what it was, it was just for sex. We weren’t a couple, we didn’t go to movies, we didn’t go to dinner, we weren’t together in a relationship no matter how often that word has been used throughout the affidavit”.[12]
[12] See transcript at page 136
Mr Morgan and Ms Carter began to have sexual intercourse with one another about two or three weeks after having met one another. This occurred at Mr Morgan’s home. Mr Morgan asserts that sexual intercourse took place every two days or so, at Ms Carter’s instigation. Ms Carter says it was less frequent and Mr Morgan asked her to come over.
It seems more likely than not that Mr Morgan became infatuated with Ms Carter. She did nothing to dissuade him otherwise, although it is now her position that she found the intensity of his expressions of affection to be unsettling.
In this context, I find the contents of a number of letters, which Ms Carter wrote to Mr Morgan, to be somewhat incongruous. The letters are not dated, but Ms Carter admits they are in her hand writing and she sent them. It is necessary for me to set out the text, of the correspondence, in full. The first letter reads as follows:
“Mr Morgan,
It doesn’t seem possible but I love you more and more with each passing day – you are the first person I have every said “I love you” to. I hate being apart from you, every part of me yearns to be with you when I can truly be myself – naked and honest with you. Sometimes I wonder how long this beautiful paradise can last but it doesn’t really matter. All that matters is you and me, alone and in our own little world. When everything else ceases to exist and the rest of the world just fades away. You bring out the best in me, you make me feel a way that can’t be named. To put a word to it, just wouldn’t do it justice … it’s unexplainable and worth it. Worth all the time I have waited and denied myself to have this. I feel like even though I have been alone all of these years, I really wasn’t alone. I could feel you next to me and every step I took was a step closer to you. Now I’m walking with you, I am content and I feel blessed. I feel as though all is right with the world and instead of trying to look too far ahead I am happy to just live in the moment – enjoying every aspect. It is you who has forced these changes in me and I love you even more for it!!
I love you always.
Ms Carter xxxx”[13]
[13] See Annexure A to Mr Morgan's Affidavit filed 17 July 2015
The second letter refers to the possibility of Ms Carter having a child, with Mr Morgan. It reads as follows:
“Mr Morgan,
It won’t be long and we will both be on holiday! While I am looking forward to going away (and getting away from everything for a while), I am also dreading it a bit as it means we will be apart. I honestly don’t know how I will be able to stand being apart from you for that long – you are very important to me babe. You mean so much to me, more than could ever be expressed in words. I am aware of life’s fragility which only services to remind me that all of this (everything we have together) could be taken away at any moment. It is with this in mind that I feel it’s more important to embrace and enjoy what we have together … living in the moment. It wasn’t that long ago that I was really struggling with everything. I was in my second year of uni and I was struggling academically. My mind was elsewhere and I just couldn’t motivate myself to get my assignments done. I was feeling a lot of guilt about how little I had seen and spoken to my dad just before he died and there was issues at home too. I didn’t feel like I could talk to anyone about what I was experiencing and I ended up in a pretty dark place. I considered doing some fairly stupid things but in the end I knew that only I could change things. I had to stand up and take action – nobody could help me if I didn’t first ask for help. I feel as though (as horrible as that time was for me) I had to go through that, it made me the stronger person I am today and I also feel as though it was a life lesson I needed to learn because I was never very good at asking for help.
I love you not only for who you are, but for who I am when I’m with you. I love you for what you have made of yourself, and for what you are making of me. I love you for the part of me you bring out. I love you for putting your hand into my heaped up heart, passing over all the foolish and weak things and for drawing out into the light all the beautiful belongings that no one else has looked quite far enough to find. I love you because you have done more than anyone could have done to make me the best I can be and more than fate could have done to make me happy.
I was thinking about how you said a little while ago that you wanted me to have your babies. I know that you say you were just testing the water but I want you to know that I’ve been thinking about this a lot. How would you feel if I made it a possibility? Tell me what you think about the idea anyway but be honest with me. I haven’t and won’t do anything unless we both agree on it first. I love you babe.
Love you always.
Ms Carter xxxxx”[14]
[14] See Annexure B to Mr Morgan's Affidavit filed 17 July 2015
With all due respect to Ms Carter, the sentiments in these letters are not congruous with a person who had embarked upon a relationship with no romantic overtones, which was based on the satisfaction of sexual needs alone. Ms Carter’s explanation for the letters is that she felt sorry for Mr Morgan, when he indicated to her that he had never previously received a love letter and would be delighted to receive one from her.
In these circumstances, Ms Carter asserts that she was willing to gratify Mr Morgan’s desires but did not mean the sentiments conveyed. At first blush, the content of the letters appears heartfelt and sincere. She refers to the death of her father and the emotional difficulties which followed.
Above all the letters appear to be personal in nature. It is Ms Carter’s evidence that she googled the phrase love letters and made up the letters, from what she discovered on the internet. However the alleged internet templates have not been provided to me.
Ms Carter’s explanation for writing the letters does not ring true to me. Nor does her willingness to engage in a clandestine sexual relationship, with a person some 15 years older than she was, for whom she felt little attraction and whom she regarded as something of a loser. It seems to me improbable that Ms Carter was interested only in a no strings sexual relationship with Mr Morgan.
However, as I have indicated earlier, I must also be careful not to apply the mores and sensibilities of an older generation to a person of Ms Carter’s age, particularly in regards to questions of sexual conduct. However, regardless of the caution, I must apply to my impressions regarding the plausibility of Ms Carter’s rationale for embarking upon a sexual relationship with Mr Morgan, the fact remains that her sexual relationship with him arose shortly after Ms S had desisted with her plans to be a foster parent. An occurrence which both Ms Carter and Ms S indicate in their evidence is a coincidence.
Mr Morgan had arranged to travel to (country omitted), for the Christmas period of 2010/2011. Ms Carter and her mother had plans to go on a driving holiday to (omitted) over the same period. Prior to Christmas, Ms Carter sent Mr Morgan an affectionate Christmas card. It is also Mr Morgan’s evidence that Ms Carter gave him a present of an apron and some barbeque sauces. Ms Carter acknowledges the card but disputes the present.
It is Ms Carter’s evidence that she separated from Mr Morgan, in early December 2010, when she was offended by his suggestion that he insert objects into her for his sexual gratification. Mr Morgan refutes this allegation, which he indicated he found deeply offensive. It is his position that the mother broke off the relationship, on 17 December 2010, for no apparent reason. It is his case that he did not see Ms Carter until after he had returned from his holiday to (country omitted) in mid-January of 2011.
Ms Carter asserts that, after discussing her concerns about Mr Morgan with Ms S, she determined to go to his home to personally inform him that she did not want to continue to see him. In her statement to police, made on 28 April 2013, Ms Carter indicated that this occurred in mid-November 2010. It is on this occasion that she asserts Mr Morgan raped her. It would appear to be the case that it was on the basis of this information that the police charged Mr Morgan with recklessly engaging in sexual intercourse with Ms Carter on a date between 1 and 30 November 2010.[15]
[15] See Exhibit B
It is now her position that the rape occurred in early December of 2010. Certainly, this date is more consistent with the Christmas card, which she sent to Mr Morgan and his recollection of when the relationship ended. It is Mr Morgan’s evidence that he received a text message, from Ms Carter, on 17 December 2010, in which she informed him that the relationship was over, which she confirmed in a further telephone call, which occurred on 21 December 2010. It is his evidence that Ms Carter gave no reason for her decision, which he found surprising.
In her evidence, Ms Carter describes being brutally raped by Mr Morgan, whom she describes as maniacal. She alleges that she was slapped across the face and sustained bruising to her legs. In addition, she asserts that Mr Morgan pulled a large tuft of her long hair, from her scalp, leaving a bald patch. If Ms Carter’s account is true, in my view, any suggestion that Mr Morgan was mistaken about Ms Carter’s level of consent, is fanciful. Her account is of a rape of the utmost gravity, which involved a great deal of violence and indignity to its victim.
The incident was not reported to police. She did not immediately tell Ms S. However, it is Ms S’s evidence that she considered that Ms Carter was not behaving normally. She was withdrawn and showering persistently. Ms S deposes that she did not observe any bruising on Ms Carter’s legs, because Ms Carter chose to wear leggings. About a week later, Ms S observed the bald patch on Ms Carter’s scalp. She demanded to know what had happened. At this, Ms Carter disclosed that she had been raped. At this stage, Ms S alleges that Ms Carter revealed to her bruises and disclosed that she had continued to suffer vaginal bleeding.
Ms S asserts that she encouraged Ms Carter to report the matter to police. However, it is Ms Carter’s evidence that she did not wish to do so, as she was embarrassed and ashamed at what had happened to her; apprehensive about how she would be treated by police, because she would have to tell them that she had earlier had consensual sex, with a person 15 years older than she was; as she was training to be a (occupation omitted), she did not want other future colleagues knowing what had happened to her; and finally, she was in a state of denial and shock, about what had happened, which she preferred to try to put out of her mind.
In my view, these are all readily understandably and explicable reactions to such an assault. As such, the absence of an immediate complaint, to police, is not a sufficient basis to reject Ms Carter’s evidence. However, nor does it corroborate it.
Against this background, both Ms Carter and Ms S depose that they decided to go ahead with their planned trip to (omitted), which both thought would be restorative for Ms Carter. It was while Ms Carter was in (omitted), during the first fortnight of January 2011, that she discovered she was pregnant, by means of a pregnancy test purchased at a pharmacy.
(c) Ms Carter’s pregnancy
On Ms Carter’s case, the only persons who were privy to her pregnancy were she and Ms S. It is Ms Carter’s case that the possibility of a termination was not an option she would consider, as she is not in favour of abortion. I am not in a position to dispute either the validity or morality of Ms Carter’s position. However, her evidence is that, although she is a religious person, she does not attend church and is not associated with any particular religious group.
In her affidavit, prepared for the trial, Ms Carter deposes as follows:
“One option that we discussed was the possibility of having the baby adopted out. I didn’t feel that I would be able to do that. At that time I was desperately concerned that as a consequence of the circumstances surrounding my son’s conception that I would not be able to cope with raising a child of my own.
I asked my mother if she would consider taking the baby on as her own child. I say that I did not want anyone to know that the child had been born out of a rape.
…
We agreed that upon our return from (omitted) some 7 weeks later that I would explain my pregnancy by letting friends and acquaintances know that I had agreed to be a surrogate for my mother. Those persons closest to us and who asked were told that my mother’s egg had been fertilised by an anonymous donor and that in due course the child would be my mother’s child and therefore my younger brother.”[16]
[16] See paras 49, 50 and 53 of Ms Carter’s affidavit filed 29 July 2015
In her oral evidence, given in cross-examination, Ms S indicated that she did not share her daughter’s moral objection to abortion. It was her evidence that, if she had been raped, she would probably have aborted the child concerned. It was also her evidence that she had come to peace with her failure to conceive through a process of IVF.
In all of these circumstances, it was the subsequent decision of Ms Carter and Ms S that Ms Carter would carry the child to term and thereafter it would be parented by Ms S, with family and friends to be told that Ms Carter had agreed to be her mother’s surrogate, which was legal in (omitted). This scenario appears unduly convenient to me. In my view, there is no adequate explanation, notwithstanding Ms Carter’s views about abortion, as to why the child could not be adopted out. At the end of the day, this evidence simply did not ring true to me.
It is Ms Carter’s evidence that during the period of her pregnancy, she entered what she described as her “own fantasy world”[17] in order to get through this period of her life. During this time, she asserts that she avoided leaving home. However, she continued to attend her university course and undertook a work placement for it. In addition, at least in the initial period of her pregnancy, she continued to work at (employer omitted).
[17] Ibid at para 56
In her evidence, Ms S indicated her view that, during this period, Ms Carter was falling apart. She was not able to expand upon this description, other than that Ms Carter was a wreck and was not good and not healthy. I pressed her to expand upon this evidence and enquired what she had done to assist her daughter.
She was unable to assist me and it became clear to me that she herself had taken no concrete steps whatsoever to assist Ms Carter. I found her evidence, in this regard, to be singularly unconvincing. It troubled me, when I contrasted it with Ms S’s previously held desire to have a child and the lengths to which she was prepared to go to achieve it.[18]
[18] See transcript at page 105
On 9 February 2011, Ms Carter attended on Dr J, at the (omitted) Clinic. The relevant record indicates that her last menstrual period was 23 November 2010. The note further indicates that Ms Carter was not planning to have kids. At this stage, Dr J ordered some pathology testing, including an STD screen and estimated the date of delivery as being (omitted) 2011.
No independent expert evidence has been led in respect of this evidence, which was not examined at trial. If correct, it would put the rape in November rather than December 2010. As previously indicated, the allegation of rape is not consistent with the delivery of the Christmas card to Mr Morgan, which wished him a happy holiday in (country omitted).
Ms Carter returned to the (omitted) Clinic on 14 February 2011, where she consulted Dr T. She reported not having complied with the pathology testing requested, as the pathology request form had apparently not been completed properly. Dr T requested diagnostic imaging, including a nuchal translucency, which is a test for Down Syndrome.
She returned to the (omitted) Clinic on 25 February 2011 and was seen by Dr A, who again requested pathology tests and diagnostic imaging. On none of these occasions is there any complaint of the pregnancy having arisen as a result of rape nor is there any reference to Ms Carter’s intention to place the child in the care of her mother.
The next matter of note, arising on the (omitted) Clinic file, is that all members of the Carter family requested the release of their medical records, from the Clinic, to Dr S, at the (omitted) Medical Clinic. It is Ms Carter’s evidence, which I accept, that she discovered Dr S had moved to this clinic and because of her longstanding relationship with him, and given her respect for his abilities, she decided to transfer her medical care to him. It is further her evidence that she had always regarded Dr S as a person in whom she could confide.
Ms Carter consulted Dr S on 18 March 2011. The note taken, by Dr S, reads as follows:
“Ms Carter finds herself unexpectedly pregnant
Her mother will assume custody of the child
Not sure of the father
Currently in her 5th of 6th years in (omitted) studies
Her LMP [last menstrual period] 23 Nov – has had U/S early on for dating purposes
Taking a pregnancy multivitamin
See LMHS ANC [(omitted) Hospital-natal Clinic]”[19]
[19] See Exhibit G
Thereafter, Ms Carter consulted Dr S on a further four occasions, which did not result in any specific personal notes. Dr S ordered a further ultrasound test on 21 August 2011, which found no foetal abnormality. At this stage, the gestational age of the foetus was said to be 19 weeks and 4 days.
Ms Carter first attended at the (omitted) Hospital anti-natal Clinic on 24 March 2011, when she was medically examined by nurses, identified respectively as Ms G and Ms S in the record.[20] Ms Carter describes the nursing sister, who took her history, as a kindly person to whom she confided that her child had been conceived as a result of a sexual assault. This is not noted on the personal history form.
[20] See Exhibit C
Under the heading, Social History is recorded that the pregnancy was unplanned and Ms Carter had no partner and no contact with him. It is further indicated that the baby would be adopted by grandmother. Ms Carter apparently declined social work intervention and is noted to have no emotional issues. Under the heading, Partner is entered unknown paternity.
Ms Carter described the nursing sister concerned as being a kindly person, of either of (omitted) ethnicity – either (omitted) or (omitted). In these circumstances, she deposed that she confided in the nursing sister that she had been raped and this was the reason she did not wish to identify the child’s father. It is her evidence that the nursing sister concerned respected her confidence.
Those advising Ms Carter chose not to seek out the nursing sister concerned to ascertain whether or not she was able to corroborate Ms Carter’s account. Ms Lindsay submits that the court should infer that the failure to call this person indicates that the witness would not assist Ms Carter’s case.[21] On a separate sheet, under the heading, Pregnancy Issues is noted the following:
[21] See Jones v Dunkell (1959) 101 CLR 295
“Single, no partner, unknown paternity, her mother adopting baby”.
Under this entry is something, which has been heavily redacted, so that the entry is illegible. Why this redaction has occurred is unknown to me.
On the same sheet, under the heading, Management Plans for Pregnancy, Birth & Post-natal Care is noted the following:
“When in patient for delivery
# Family does not know how conception occurred – was told is a surrogacy plan for her mum and (illegible) the adoption
# Family does not know due date/gestation
- do not let anyone (family/friends) see notes
- do not mention EDC or gestation
- do not discuss conception/father of baby.”[22]
The discretion requested, in this entry, is consistent with Ms Carter’s evidence that she disclosed the rape to the nursing sister concerned, who sensitively responded to her request for discretion. However, in the absence of evidence from this person, I am unable to conclude this issue definitively.
[22] See Exhibit C
When X was born, at the (omitted) Hospital, Ms S was also an impatient at the hospital due to her suffering bacterial meningitis, which rendered her seriously ill. X was subject to a mandatory notification to Families SA. The notification reads as follows:
“B/Ms Carter DOB: (omitted) 2011 male.
Plan for social work referral.
Ms Carter plans to give baby to her mum for adoption.
Ms Carter does not know the father of this baby.
Ms Carter’s mum is in (omitted) Hospital ICU and is unaware baby is born. Ms Carter does not wish to tell her mother in case it stresses her.
Some of Ms Carter’s family members believe the [sic] is acting as a surrogant [sic] for her mother and they believe the gestation of the baby is different. They are under the impressive [sic] the baby is 8 weeks early.
Ms Carter declined social work referral, states she has her own lawyer.
I asked Ms Carter who would care for the baby whilst her mother was still in hospital, she stated, ‘I guess I will’.
Ms Carter has been very quiet and gives only short answers to questions.”[23]
[23] See Appendix B to Affidavit of Detective L contained in Exhibit A
Ms Carter agrees that X was not breastfed following his birth. Hospital notes also indicate that she was disinclined to visit X whilst he was in the hospital nursery. Her responses to the post-natal depression scale, administered to her, whilst in hospital, do not indicate post-natal depression.
During her evidence, Ms Carter agreed that she had been reluctant to engage with X, whilst in hospital, because it had been her intention that he would be immediately passed to Ms S, upon his delivery. However, this could not occur due to Ms S’s own unexpected hospitalisation.
Following X’s birth, midwifery staff visited X at home, in order to weigh him, on (omitted) 2011. The relevant notes indicate that Ms Carter was unwilling to engage with the midwife and it was apparent that B was bathing X, whilst Ms Carter and Ms S were asleep.
Neither Ms Carter nor Ms S provided any extensive detail, regarding day to day arrangements for the care of X. However, it is the tenor of Ms S’s evidence that she provides the majority of X’s daily care. In this context, she describes Ms Carter as being hyper-vigilant for much of the time. Nonetheless, Ms S hopes that Ms Carter will assume much greater responsibility for X’s care in the future. It is Ms S’s position that X is a much loved child, who interacts regularly and lovingly with all members of her household.
In her evidence to the court, Ms Carter indicated that she had started to assume a greater role in X’s life. She accompanied him to such things as kindergym. However, she conceded that Ms S continued to perform most of the parental duties for X and he continued to regard her as his mum.
Ms Carter does not have a specific plan, as to how X is to be told that she (Ms Carter) is not his sister, but rather his mother. It is her position that she will disclose this information, to X, when she believes it is appropriate. In addition, she asserts that she will obtain professional assistance, in this regard, if she considers it appropriate.
To Mr D, she indicated her view that Mr Morgan had forfeited any parental role, in respect of X, because of the rape. This remained her position, at trial. I doubt that she will change her view, in this regard, at any time in the foreseeable future.
(d) Mr Morgan’s conduct during the pregnancy and afterwards
Mr Morgan asserts that he unexpectedly saw Ms Carter, in early February of 2011, when he was shopping at the (omitted), where she was working. Ms Carter confirms that she saw Mr Morgan, on a few occasions, whilst she was at work, which she asserts caused her a great deal of anxiety. It is Mr Morgan’s evidence that he had a suspicion that Ms Carter might be pregnant, when he saw her in February. This seems to me to be improbable.
However, in September of 2011, Mr J contacted him with the information that he (Mr J) had seen baby clothes on the washing line, at Ms Carter’s home. At this stage, it is his evidence that he (Mr Morgan) calculated, in his mind, the date on which he had last had sex, with Ms Carter, which led him to the conclusion that she had given birth to his child.
In December of 2011, Mr Morgan attempted to access the mother’s Facebook page, but discovered that he had been blocked from accessing it. Nonetheless, he sent a message, in the following terms:
“I like my son.”[24]
[24] See Annexure D to Mr Morgan's Affidavit filed 17 July 2015
He sent further messages on 19 and 20 December 2011, in the following terms:
“Hello Ms Mum”
“I will be cool about things, but as his father, I am so happy you gave birth to him.”[25]
[25] Ibid at Annexure E
Again, what are the likely emotional implications of this for X are uncertain. Certainly, it will mean that he does not have any form of relationship, with his mother, in the medium to longer term. It is also possible that such an outcome will lead to a deferral of any action, on the part of Ms S and Ms Carter to inform X of the true circumstances of his parentage.
Even if Ms Carter does not withdraw from X’s life entirely, she is likely to present to him as an angry, distressed and sad person. This will not assist the process of her being introduced to X as his biological mother. In all these circumstances, I accept Mr D’s assessment that there would not be a lot of room to go forward. It will also most likely lead to Ms S taking all parenting responsibility for X for the indefinite future.
I agree with Mr D’s assessment that the issue of X’s maternal parentage is a ticking time bomb, which needs to be confronted sooner rather than later. The issue is likely to explode more violently, the longer it is left and the greater period of time X perceives that he has been misled by those whom he loves and trusts. I also agree that a policy of gentle, age appropriate information is likely to be best.
As such, I accept the submissions of Mr Boehm that it would be in X’s interests that the issue of the identity of his mother be broached sooner rather than later, regardless of whether Mr Morgan is involved in the process or not. The question is how this is to be done and whether it should be done in a manner which is subject to the court’s direction. Mr D argues that given the moment and complexity of the issue, it is better done with professional assistance.
This is likely to be so, but Ms Carter and Ms S are likely to resent being told what they should do in this regard and how they should do it. There are also likely to be financial implications arising from how the therapy is to be funded. In addition, in the absence of any involvement from Mr Morgan, there is likely to be no controversy between those persons centrally involved in the issue, namely Ms Carter and Ms S and other members of their immediate family, as to how it is to be done and when.
In these circumstances, it seems to me to be questionable for the court to direct Ms Carter as to how she should deal with this aspect of parental authority. In the absence of any input from Mr Morgan, arising as a consequence of the outcome of these proceedings, it seems otiose for the court to direct Ms Carter how she should broach the issue with X.
If I do make the orders proposed by Mr Boehm, the only person likely to seek to enforce them, if they are not followed, is Mr Stephen. In the absence of any process of therapy involving him, Mr Morgan will be disinterested in the process, other than that he will regard it as a sleeper which will inevitably come to life at some stage in the future.
At this later stage, he anticipates that, if Ms Carter and Ms S have not been candid with X, there will be serious ramifications for their relationship with X because he is likely to be extremely angry with them that he has been lied to and perhaps deceived about the identity of his father and the circumstances of his conception.
The chief benefit of having a skilled therapist, such as Dr M, oversee this process, is that she will ensure that whatever X is told it is age appropriate for him and conveyed in a manner which is least likely to cause him emotional dysregulation. However, it seems improbable that she could successfully direct Ms Carter and Ms S as to what and whose truth the child is to be told outside of the process.
In my view, the chief benefit of having Dr M involved in any therapeutic process is if it involves Mr Morgan. In such a context, she will provide essential safeguards for X. I am not so persuaded that such safeguards are required, if the process does not directly involve Mr Morgan in the medium to longer term.
It is Mr Morgan’s position that the principles underlying Part VII of the Family Law Act place parents in a position of primacy towards their children. He places particular stress on the legislative direction that children have a right to know and be cared for by both their parents and to spend regular periods of time with them regardless of the status of the relationship between those parents [section 60B(2)(a) & (b)].
In this context, in generic terms, I accept that children gain a sense of personal identity by interacting with their parents – their biological instigators with whom they share a genetic inheritance – in a variety of settings and circumstances. As such it is a significant thing to deprive a child, of any age, of the opportunity to know a parent at first-hand. It is a significant and fundamental right, which arises because the bond between a parent and a child is the most fundamental and important of all human connections.
A child’s parents are also likely to be a source of unconditional love and approval for the child concerned. Parents provide children with knowledge and information about their wider family and forebears. Parents endow their children with warmth and approval and, as such, children feel a sense that they are unique and special to their parents. For these central and self-apparent reasons, children benefit from having a “meaningful” relationship with both their parents.
The parental bond, involving nurture and support, is central to a child’s ongoing development. Children need both paternal and maternal role models to assist them to move appropriately towards maturity and become competent and insightful parents in their own turn.
For these reasons, it is a very significant thing indeed, for a court to order that a child spend no time whatsoever with a parent and, in effect, sever a parental relationship for a child, for an indefinite period, perhaps even for the whole of the childhood of the child concerned.
These various factors are the underpinning of Mr Morgan’s case. He accepts that it must be the case that he did not plan to become a parent, in the way in which he did, given the highly unusual circumstances arising in this case. However, from his perspective, these circumstances are no longer particularly relevant, and now he has become a parent, he presents himself as a loving and available one, regardless of the status of his relationship with Ms Carter. It is his case that X will benefit from knowing who his dad is and receiving love and approval from him, because he has got both to give to X, by the spadeful.
However, in my view, the controversy arising between him and Ms Carter, regarding why the relationship between them came to an end, must colour any future relationship which he has with X, regardless of the truth or otherwise of Ms Carter’s allegation. As I have previously indicated, I regard it as naïve for Mr Morgan to believe that Ms Carter and Ms S can put the issue to one side, as he has indicated he will do, for X’s sake.
There is much truth, in my view, in Mr Morgan’s metaphor that Ms Carter has painted herself into a corner. If the rape happened, it would be both insensitive and unreasonable for any person, including the court, to expect Ms Carter to put it to one side, in order to forward what the perpetrator of the crime against her asserts is in the resulting child’s best interests. If the rape is a concoction, it is long past the point where either Ms Carter or Ms S can disown it. Rather they must continue to promulgate their account, regardless of the implications of this for either Mr Morgan or X.
In these circumstances, it is fatuous for Mr Morgan to consider that any resolution of the central factual issue in this case, by the court, in his favour, must lead to it making an order for X to spend time with him, in some form or other, because this will be fair to him because it has been established that he has been the victim of Ms Carter’s perfidy.
Such a finding will not lead to either Ms Carter or Mr Morgan abandoning their respective versions of the truth or stop them promulgating it to X, at some stage of the future. The court’s responsibility is to do its best to secure X’s interests, not to pass judgement on the parties themselves.
It is in this highly problematic context that the court must examine the concept of what is a meaningful parental relationship. In McCall & Clark [56] the Full Court indicated that the concept was a qualitative one and any parental relationship, in order to be meaningful for the child concerned had to be an important, significant and valuable one for that child.[57]
[56] McCall & Clark (2009) FLC 93-405 at 83,476
[57] See Mazorski & Albright (2007) 37 Fam LR 518 at [26] per Brown J.
In addition, the Full Court recognised that, as with the current matter, courts at first instance are frequently called upon to make parenting orders in respect of individuals who have no or only the most cursory of relationships with their children. In this sense the Full Court also indicated that it was often necessary for the court to take a prospective approach to the issue of meaningful parental relationships.
In this case, the only possible approach, which can be taken to the issue of whether it is or is not possible for X to have a meaningful level of relationship, with Mr Morgan, is on a prospective basis. In this context, the court must examine, in both the short and longer term, what value and benefits X is likely to derive from interacting with Mr Morgan, particularly given the difficult dynamic between his parents.
In my view, this dynamic is likely to be characterised, for the indefinite future, by the following factors:
·a total lack of communication and trust between the parties;
·subtle and active attempts emanating from Ms Carter and Ms S to de-rail any process through which X is introduced to Mr Morgan;
·in this context, one parent is likely to characterise the other parent, to X, as a violent and anti-social person, whilst that parent, when so characterised will in retaliation, characterise the other to X as a person who has lied to him; and
·this must create an extraordinary level of tension, for all concerned, including X himself.
It is difficult to see how X could be quarantined from these factors, which are also likely to have adverse consequences for his parents. Every time X is brought to a therapy session or a supervised visitation, it seems more than probable that he will suffer some form of anxiety and distress.
In addition, it seems highly likely that Ms Carter will suffer a recurrence of her PTSD and related depression and anxiety, if she elects to remain in X’s life. Given Ms S’s overt hostility for Mr Morgan, I doubt that she would be a moderating influence on this dynamic. Mr Morgan himself is likely to find the process frustrating and emotionally draining.
Finally, I have no evidence to assess how Dr M or some other therapist or indeed the workers at any children’s contact centre, which becomes involved, would deal with X, if he manifested significant signs of distress, other than I know from my own experience that most such centres have policies in place to present children being subjected to any process of contact, which precipitates a distressed reaction from them.
Accordingly, in the short to medium term, the process proposed by Mr Morgan has the potential to provoke an adverse reaction in X. It also seems to me that there is strong possibility, at this stage of his emotional development and given his level of intellectual development, particularly in terms of his capacity to make sense of what is happening to him, that he will be confused by the situation into it is proposed he be placed. In short, in my view, the process of introduction is fraught with all manner of risks, from X’s point of view, whilst it is unclear how those risks would be managed.
Against these factors must be balanced any potential prospective benefits X may gain through the process. I accept that Mr Morgan is interested in X and well-motivated to be an involved parent, but given the pitfalls inherent in the introduction process, which must lead to the strong probability it will fail, these benefits must be regarded as being both nebulous and uncertain.
On any view, the current circumstances are not likely to provide fertile ground on which a strong and meaningful relationship may grow between father and son, especially whilst X has a limited capacity to make sense of his situation, particularly in terms of reconciling the dichotomous views of those who profess to care about him. In real terms, I have concerns that to place him in such a situation has the potential to tear him apart emotionally, with limited benefits.
In McCall & Clare [58] the Full Court also recognised that there are some cases where there are no or limited benefits arising from the court attempting to craft orders to facilitate a parental relationship for a child. The Full Court said as follows:
“…we also consider the legislation requires a court to focus on the benefit to the child of a meaningful or significant relationship. No doubt in the majority of cases there will be positive benefits 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 court attempting to foster a relationship with one parent if this would not be in the child’s best interests.”
[58] Supra at 83,476 [122]
From Mr D’s perspective, which I respect, it is better to grasp the nettle of the issue of X’s paternity now, because it is not going to go away and will inevitably re-emerge at some stage in the future, at which stage its potential to do X harm will have exponentially increased. In his view truth is the only force that can precipitate a resolution of the dilemma created by this case. But at the risk of repetition, what is the truth and given its indeterminacy in this case, how can exposure to a contradictory truth bring certainty to X himself.
As I observed during the course of the proceedings, both Ms Carter and Mr Morgan anticipate that it is probable that, at some stage in the future, X will be placed in the position of being called to be both judge and jury of the truth of the respective positions of his biological mother and his biological father, regarding how he came to be conceived. In my view, it is preferable that, if and when this occurs, X has a sufficient level of maturity to undertake it and it is not necessarily forced upon him prematurely. Clearly, in my view, it is the case that currently X does not have the perquisite level of maturity and is not likely to do so for some years to come.
The difficulty arising from this approach is that it cannot be determined when the time bomb will explode and how X will be placed, both in intellectual and psychological terms to deal with it. The emotional typography currently inhabited by X must be regarded as being extremely labile.
As such, I accept Mr D’s evidence that X must be regarded as a vulnerable child. He is vulnerable because it is uncertain how he will react to being told that Ms Carter is his mother, rather than his sister; it is also uncertain as to what his reaction will be when he begins to make inquiries as to the identity and whereabouts of his father. In terms of the second issue, much turns on what he is initially told.
In my view, the first issue is likely to be more easily managed because Ms Carter and Ms S have a vested interest in ensuring that the necessary information is conveyed to X accurately and appropriately. I also agree with Mr D’s assessment that it is close to impossible for X to be deceived about the issue indefinitely. At some stage, he will gain access to his birth certificate. In addition, I also accept Mr D’s view that he is likely to sense something is not quite right about his home situation.
Whether Ms Carter and Ms S accept Mr D’s evidence and commence the process of informing X, about the circumstances of his maternity, sooner rather than later is, in my view, a matter for them. It does however seem to me that it is eminently sensible that this should occur. For reasons already provided, I question the benefit of involving the court to ensure that it occurs in the manner recommended by Mr D, if Mr Morgan’s future role in X’s care is not also subject to the court’s direction.
Just as it is inevitable that the issue of X’s maternity will emerge for X, so it is with the complex issue of his paternity. It must be the case that very soon, if not already, he will realise other children of his age have fathers and he will ask “who is my daddy” most likely followed by “and where does he live?”
As Mr D opined, it is likely to be best that this question is answered with a level of gentle truth. What that gentle truth will be cannot be the subject of court direction but, if it is provided by Ms Carter and Ms S, it is not likely to be completely innocuous in its description of Mr Morgan. In addition, it is unclear whether whatever answer is given to X that it will mollify him for any protracted period of time.
I accept the truth of Mr D’s analysis, drawn from the experience of adopted children and those conceived through IVF, that children separated from a biological parent very often demonstrate a deep yearning to connect with that parent, regardless of how happy or otherwise their upbringing has been. In these circumstances, it is likely that X will demonstrate a similar tendency, in respect of Mr Morgan – obviously depending on what he has been told about him – at some later stage of his life.
This is the central dilemma for both the court and for Ms Carter. It is Mr D’s view that, no matter what are the weaknesses and uncertainties of the therapeutic path, it is better that it is attempted now, rather than allowing the truth to come out later for X, in what is likely to be an uncontrolled and unpredictable manner, with the potential to tear his life asunder. In these circumstances, the approach recommended by Mr D is essentially prophylactic.
In this context, I agree with Mr D’s conclusion that, if X considers he has been lied to by Ms Carter and Ms S, about Mr Morgan, he is likely to reject them in a most emphatic way and this is likely to have serious and unpredictable emotional consequences for him. It is also likely to result in him aligning himself with Mr Morgan or at least seeking to connect with him in some way.
How successful that connection will be is likely to depend on what X believes about Mr Morgan. In this context, I agree with Mr D that there are serious implications for X’s level of self-esteem if he considers that he is the progeny of a violent rapist. He may feel that his very being was in some way tainted from its very inception. In these circumstances, what X believes is his conception story, may be a very heavy burden for him indeed.
I agree that these issues are significant ones, which are likely to have a strong bearing on X’s best interests in the medium to long term. But do they justify the court embarking upon a process of uncertain therapeutic intervention, for X, at this stage of his development, given the grave difficulties which I believe such a process inevitably entails for him.
In my view, this is a question which turns on the responsibilities incumbent on the court in determining applications, such as this one, which are brought under Part VII of the Family Law Act. At this stage, it is the responsibility of the court to consider what benefits X is likely to derive from having a meaningful level of relationship with his father. The parties have a fundamentally different view as to these benefits and whether such a relationship is in X’s best interests, at all.
Accordingly, the court’s fundamental responsibility is to resolve this dispute between the parties who have it. In resolving that dispute, X’s best interests are the fundamental determinate, not the interests of the parties themselves. In my view, it is not necessarily the role of the court to determine whether it is in X’s best interest to engage in some form of therapy, which may have ramifications for his emotional well-being, at some indeterminate point in the future.
Having determined that it is not likely to be the case, at present, that X will derive any significant benefits from interacting with Mr Morgan and there are unacceptable risks, germane to his wellbeing, inherent in such a process, in my view, it is not the role of the court to put in place a regime of prophylactic therapy designed to protect X from the potential psychological consequences, significant though those consequences are likely to be, of him being exposed to the parties’ fundamental disagreement about the circumstances of his conception, at some indeterminate date in the future.
This court does not have the resources to deal, for an indefinite period of time, with the issue of the ticking time bomb relating to X’s identity. The issue of the therapeutic course of introduction, in my view, can only be the subject of this court’s order, if it is ordered in conjunction with the court delineating a regime for Mr Morgan to interact with X because of its view of the relevant considerations arising under section 60CC and related provisions of the Act.
I do not consider that the court can order a process of therapeutic counselling because it considers it to be in X’s best interests alone that it be done. Essentially the court’s attempt to mandate a process through which X is to be told about his origins, independently of one of the parties to the action before it.
I agree with Mr D that the question of how and when X’s paternity and maternity is to be resolved is fundamental to his long term welfare and, as such, it is clearly preferable that the existing muddle be sorted out safely and therapeutically in a child-focussed way, at the developmental stage appropriate for it to be done. I also agree that if the issue of his paternity is revealed to X in an unexpected or uncontrolled fashion, it may lead to unpredictable consequences, not only for him but also the parties themselves.
However, I am not persuaded that, at this stage, it is appropriate for the court to mandate some uncertain process, at this stage of X’s development, with the intent of providing some form of safeguard to him, against these future and inchoate dangers. This is, in my view, beyond the remit of the court, which, as I have indicated, is to resolve the parenting dispute arising between the parties, particularly whether X is likely to benefit from having a parental relationship with his biological father.
As Mr D has indicated, the current uncertainty about X’s parentage has the consequence of being deleterious to his emotional well-being in both the short and long term. I have determined that it would not be helpful to X, at this stage, to involve Mr Morgan in the process of resolving this issue.
In addition, as Mr D has indicated, Families SA, the state authority charged with protecting children in the state of South Australia, are not likely to consider the issue of sufficient moment to justify its intervention in care arrangements for X. I have no authority to compel them to assume such a role.
Essentially, Families SA will not of its own motion provide the therapeutic support, which may possibly assist X to be told, in the most appropriate why, what were the circumstances surrounding his conception, with the intent of avoiding the unpredictable outcome, which Mr D fears. However, of course, even with the oversight of such a Department and the involvement of all manner of caring and competent professionals, the fundamental issue will remain – whose truth is X to be told?
The additional considerations
a) The child’s views
X is, of course, unaware of the decentral dilemma arising in this case. As such, he knows nothing of Mr Morgan. In addition, he is only four years of age. As such, this is not a relevant consideration in the current case.
b) The nature of the child’s relationship with parents and significant others
X has never met Mr Morgan. As such, there is no relationship whatsoever between the two. Although I accept that Mr Morgan will do whatever he can to facilitate a close and loving relationship between him and X, such a relationship is likely to take both a great deal of effort and significant time to achieve.
Regrettable, although Mr Morgan is likely to have the time to create such a relationship and I accept his evidence that he is committed to provide the effort, the current situation does not provide fertile ground to support such a relationship.
I also accept that Mr Morgan has many relatives, who know of X’s existence and therefore are deeply desirous of having a relationship with him. However, at present, the potential of these relationships has no possible significance to X.
The evidence indicates that Ms Carter elected not to psychologically bond, with X, immediately after his birth. In these circumstances, it seems apparent that X’s major relationship is with Ms S, whom he regards as his mother.
As I have indicated, both Ms Carter and Ms S acknowledge that, sooner or later, X will have to be appraised of the truth regarding his maternal relationships. However, at this juncture, in my view, the significance of X’s relationship with his maternal grandmother needs to be respected.
At this stage, it is unclear what will be Ms Carter’s role, in X’s care, over the next period of time, both before and after he is told about the true nature of his maternal relationships. However, in this context, I accept that there is a risk, if Mr Morgan becomes involved in X’s life, even peripherally, there is a significant risk that Ms Carter will elect to withdraw from providing any care of or other involvement in X’s life. When I come to consider all the various unpalatable outcomes, potentially arising in this case, this is one of the more unpalatable ones.
The court was not provided with any direct evidence from either A or B about their respective relationships with X. In addition, Mr D did not observe X with Ms S. I accept however that X has a significant level of relationship with all the adults, with whom he shares a home. As such, I accept that he is a much loved little boy.
c) The extent to which each of the child’s parents have taken or failed to take the opportunity to be involved in decision making and to spend time or communicate with the child
In the unusual circumstances of this case, this consideration is not particularly relevant. No doubt Mr Morgan would be delighted to be involved in any making of any decision regarding X. In addition, up to this stage, it has been impossible for him to spend any time whatsoever with X. I accept that this situation has not been of his choosing.
Ms Carter concedes that she has referred the vast majority of parental responsibility for X, to Ms S. On her case, this is because the circumstances surrounding X’s conception have made it very difficult for her to be involved, to any significant degree, in significant aspects of X’s life and care.
If X was conceived through rape, it is difficult to see how Ms Carter can be criticised for delegating parental decision making to Ms S. To the contrary, if Ms Carter’s account of rape was concocted and, she solicited Mr Morgan to conceive a child, with her, which was to be given to Ms S, it would be expected that she (Ms Carter) would delegate parental responsibility to Ms Carter. In my view, this analysis merely serves to demonstrate that this criterion is not particularly applicable to the determination of the current matter.
ca) Provision of financial support for the child
As far as I know, neither Ms S nor Ms Carter have sought an administrative assessment of child support, for X, payable by Mr Morgan. I have not been advised whether Centrelink has provided either Ms Carter or Ms S an exemption, in this regard and, if so, for how long.
In his affidavit material, Mr Morgan has indicated a willingness to provide financial support for X. However, I suspect that this is dependent upon him having some form of relationship with the child. Again, this is not a relevant consideration to the resolution of the current matter.
d) The likely effect on the child of any changes in his circumstances, including separation from a parent
This is one of the more significant additional considerations arising in this case. X has been separated from his father since his birth. One of the consequences of this separation is that X does not know that he has a father. I accept that, as X matures, the absence of a father, in generic terms, is likely to be a significant deficit for him.
As I observed earlier, children benefit through being exposed to appropriate paternal and maternal role models. It is a natural incident of humanity that parents love their offspring. Through the ordinary commonplace mystery of inheritance, X and Mr Morgan will share traits, both physically and in terms of personality, which are likely to form the basis of a common experience and view of the world, which they can share. In these circumstances, I am well aware of the moment of the court’s decision, which at this stage will not lead to the facilitation of a central human relationship, in X’s life – that of father and son.
These considerations arise in the context of a criterion directed towards the consequences of change in a child’s life. In this context, it is the position of both Ms Carter and Ms S that it is likely to be better, for X, to let sleeping dogs lie, at least for the time being.
For the reasons expounded, at some length above, it seems inevitable that the current comfortable homeostasis regarding X’s family situation cannot be maintained indefinitely. As such, at some stage in the future, it seems probable that X will be subjected to some significant level of change. What precisely that change will be, is uncertain.
Firstly, X will be told that Ms Carter is his mother, rather than Ms S. If this change is managed independently of Mr Morgan, it is likely that the fallout from this information can be controlled for X.
The second and more problematic change is the potential for Mr Morgan to become involved in X’s life on the basis that the child is, in some way, informed that Mr Morgan is his father. All agree that this is likely to be a momentous change for X, depending on how and when he is informed of it.
This could potentially occur in two ways. Firstly, through the intervention of the court and the process of therapeutic introduction, via Dr M and the children’s contact service, proposed by Mr Morgan. Secondly, inadvertently or unexpectedly, at some unknown date in the future. It is Mr D’s view that the second option is beset with all manner of psychological dangers for X.
For the reasons already provided, I am of the view that the change, in emotional terms, envisage in the first option, are too extreme for X. In respect of the second such outcome, I am of the view that it is both beyond the court’s responsibility and indeed capability to protect X, in any order which it makes, against this eventuality, given that it has ruled out the former option.
e) The practical difficulty and expense of the child spending time and communicating with each of his parents
For many reasons, the current case cannot be regarded as a conventional matter. As such, the issues of logistics, which current arise in parenting cases, where the parents concerned live some distance apart and have limited means, do not apply in this case. As such, this is not a relevant consideration.
f) The capacity for the parents to provide the child’s emotional and educational needs
i) The attitude that each parent has demonstrated to the responsibilities of being a parent
In the current case, it is convenient to consider these two criteria together. This is not a case, which has concentrated on parental capacity or insight. Whatever is the outcome, it has the potential to be emotionally devastating for X. As Mr D agreed, this is a case centring on what is the least bad outcome for X. I am well aware that whatever occurs it will not be optimal for X. This is because the prospect of the parties ever having even the most basic of a functioning parental relationship together must be regarded as non-existent.
g) The child’s maturity, sex, lifestyle and background and aboriginality
These are not relevant considerations in this case.
j) Family violence
k) Any family violence order
I have dealt extensively with the issue of family violence earlier in these reasons for judgment. It is not useful to add to those comments, other than to say that Ms Carter has never sought a family violence order against Mr Morgan.
l) Whether it would be preferable to make the order that would be least likely to lead to the institution of the proceedings
Given X’s age and the potency of the issue surrounding his paternity, I concede that the decision, which I have reached in this case, must be regarded as unfinished business. The ticking time bomb continues to tick. At this stage, I can see of no obvious way to defuse it, without causing significant harm to X, at this stage. In these circumstances, I am cognisant that, in a metaphorical sense, the issue is a can being kicked up the road for either the parties or the court to deal with later.
The issue of X’s paternity can only be temporarily anesthetised. It will inevitably come to life at some stage. The dilemma for the court is whether to rouse it now, in the hope that well-meaning orders and well-directed therapy can ensure it is confronted sooner rather than later and its potential deleterious consequences ameliorated; or to hope for the best, when X learns at least something of the controversy surrounding his conception and begins to agitate about it, in some way or other.
As with many issues, arising under the Family Law Act, it is a matter of balancing competing considerations. I have come down in favour of focussing on the situation, for X, as I assess it now. I am well aware that this may lead to the institution of proceedings at some uncertain time in the future. Certainly, I accept that Mr Morgan is likely to consider my judgement to be flawed and, as such, he will not easily abandon his desire to have some form of relationship with X, no matter how cursory.
Accordingly, the prospect of further emotionally laden proceedings, in the future, must be regarded as probable. When these proceedings occur is likely to depend on when, how and what X learns of the disputed circumstances of his conception. However, in my view, the prospect of these proceedings, which I concede have the potential to be just as fraught as the current ones or more so, does not justify the court in embarking on what I consider to a dangerous and unwarranted experiment, so far as X is concerned, given his current stage of emotional and cognitive development.
Conclusions
Having considered all the applicable section 60CC factors, I have come to the conclusion that it is neither in the best interests of X nor reasonably practicable for the presumption of equal shared parental responsibility to be applied to his care.
At this stage, there is no parental relationship whatsoever between Mr Morgan and X and, in the difficult circumstances which prevail, I do not consider that it would be in the child’s best interests for the court to attempt to enliven engender such a relationship, in the face of the implacable opposition of both Ms Carter and Ms S. In these circumstances, I have come to the conclusion that any benefits arising for X, from knowing his father, are likely to be entirely negated by the conflict and confusion to which he will be exposed.
As these lengthy reasons for judgment demonstrate, I have not found this an easy matter to resolve. I am also well aware of the moment of the court’s decision, for X, which has the potential to resonate with him, quite possibly for the remainder of his life. As Fogarty J remarked, I am confronted with the enormity of the potential consequences of being wrong, whatever course of action I choose to adopt – the child being deprived of a loving father; or the child being placed at the vortex of endless conflict and strife between the paternal and maternal aspects of his origins, which will never resolve.
In these circumstances, it seems to me that I should concentrate on X’s situation now, not on how it may be hypothetically, at some stage, in the future. In my view, it is impossible for the court, at this stage, to fashion any sure-fire remedies for X, in response to the various permutations of events, which may or may not occur in future.
Because of the problematic interaction of the parties, which occurred when X was conceived and afterwards, there can be no perfect outcome for X in this case, which the court can achieve or one even remotely close to it. The court does not have foresight. As such, the laudable objectives enshrined in section 60B(1) are out of reach for X, at this stage of his life.
I have come to the conclusion that given the extraordinary circumstances arising in this case, X best interests will be served by there being no court mandated regime for him to spend time with his father. I reach this conclusion because I am of the view that the relationship between the parties simply will not support such an outcome, without causing a great deal of harm to X himself, regardless of the truth or otherwise of the rape allegation.
Ms S is not a party to these proceedings. As such, she does not seek any orders in respect of X’s care, although it is likely to be the case that she will continue to provide a great deal of the care, for him, for some time into the future. Mr Morgan is not in a position to exercise any incident of parental responsibility for X.
In these circumstances, the only option for the court is to confer parental responsibility, for X, on Ms Carter, although she is likely, in turn informally to delegate that authority to Ms S. I will also make an order that the child continue to live with his biological mother.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding five hundred and three (503) paragraphs are a true copy of the reasons for judgment of Judge Brown
Date: 26 February 2016
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Family Law
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