OATES & MYLES

[2014] FamCA 1071

FAMILY COURT OF AUSTRALIA

OATES & MYLES [2014] FamCA 1071

FAMILY LAW – CHILDREN – limited right of cross-examination by the father – father convicted by a jury and sentenced to 13 years imprisonment for incest-associated offences with step-daughter –  impact upon natural child and mother – sole parental responsibility and relocation overseas contemplated – orders in the best interests of the child accordingly.

Family Law Act 1975 (Cth)

Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40

APPLICANT: Mr Oates

RESPONDENT: Ms Myles

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 8631 of 2011

DATE DELIVERED: 3 December 2014

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 24, 26 November 2014

REPRESENTATION

THE APPLICANT: In Person

COUNSEL FOR THE RESPONDENT: Mr Wilson

SOLICITOR FOR THE RESPONDENT: Carew Counsel Pty Ltd

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Treyvaud

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Macgregor Solicitors

Orders

1. That the Airport Watch order made on 23 September 2011 is forthwith discharged.

2. That the Australian Federal Police are requested to remove the name of the child Y born … 2008 from the Airport Watch List.

3. That the mother have sole parental responsibility for the said child Y born … 2008.

4. That the mother be permitted to take Y to live permanently in the United Kingdom.

5. That the child live with the mother.

6. That the father have no contact with Y other than by way of cards, letters and presents which are to be sent to the mother care of her parents’ address in the United Kingdom and the mother shall have a right to vet such materials and decide whether they should be given to Y but at all times, the mother must on two occasions per year if the father has sent such material, advise him whether or not the things have been given to Y.

7. That subject to Y understanding that he has a father, should he so request details from his mother, she encourage him to write to his father.

8. That the mother has leave of this Court to alter the name of Y’s surname to Myles.

9. That all extant applications are otherwise dismissed save as to issues for costs.

10. That pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

11. That the Independent Children’s Lawyer is discharged from the proceedings.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 8631  of 2011

Mr Oates

Applicant

And

Ms Myles

Respondent

REASONS FOR JUDGMENT

1. The child Y (“the child”), aged six, is the only child of the union of Mr Oates (“the father”) and Ms Myles (“the mother”).  This case is about their limited parenting dispute.  It is limited because the father is in prison.  Whatever else may be said, the parenting role will fall to the mother for what appears to be likely to be a significant part of the child’s life. 

2. The issues in dispute have to be determined in those difficult circumstances but at all times, regardless of the parental difficulties, the decision is about the child’s best interests. 

3. The father is currently in prison undergoing a sentence imposed by the County Court of Victoria in early 2014 for serious sexual offences against the mother’s daughter who is about to turn 18 years of age.  It is important to observe that despite the father’s continued protestations of innocence he was found guilty by a jury of his peers of a number of offences.  The conviction by the jury occurred in late 2013. 

4. The issues before the Court are not complicated bearing in mind the onus of proof lies with the person making the assertion and the standard of proof is the balance of probabilities.  Thus, to the extent the father denies the mother’s assertion that he is a risk to the child, the Court must determine that issue on the balance of probabilities.  The mother points to the father’s conviction and sentence as evidence of his poor parenting responsibility as well as the physical limitation upon the possibility of physical contact by virtue of his imprisonment in a rural location. 

5. Because the criminal proceedings moved slowly, the proceedings in this Court subsequent to separation, were difficult because, apart from the allegations, there appeared no objective proof of wrongdoing by the father.  On an interim basis however, the Court restricted the father’s time with the child, ordering that time be supervised at a contact centre.  That did not occur.  Thus, the child has had no contact with his father for almost three years now.  He was three years old when last in the physical possession or care of his father.

6. The issues for determination are:

   (a)The mother’s request to take the child to live permanently in the United Kingdom;

   (b)Whether the mother should have sole parental responsibility for the child;

   (c)The question of whether the mother should be permitted to change the child’s surname to that which he currently uses;

   (d)Whether, if not in the United Kingdom, should contact between the child and his father be at the prison every second month; and

   (e)Regardless of the incapacity of the father, should there be correspondence and communication between he and the child and if so, in what form?

7. The background of the proceeds can be succinctly stated.  The father was born in Australia and is now aged 40 years and the mother was born in the United Kingdom and is now 38 years.  X is the daughter of the mother who made the allegations against the father; she is about to turn 18 years of age.

8. In 2006, the parties commenced living together in the United Kingdom and in October 2008, the child Y was born there.  In September 2010, the parties moved from the United Kingdom to Australia on what was to be a permanent move.  That inference is open from questions put by the father to the mother in cross-examination about the evidence of the visa application that she made (supported by him) indicating permanency was intended.  What is significant in the chronology is the fact that only one year after arriving in Australia, the parties separated on a permanent basis. 

9. The separation arose out of the allegations made by the mother’s daughter.  The details of those allegations appear in the sentencing remarks of the County Court of Victoria to which I shall turn. 

10. The father was the applicant and the mother was the respondent.  On 23 September 2011, the father began the proceedings by filing an application for injunctive relief to preclude the mother from removing the child from Australia.  That application was made on an ex parte basis and Senior Registrar FitzGibbon was sufficiently satisfied about the urgency of the matter to make the order.  That order has remained in existence since that date.

11. It would appear that the application by the father was precipitated by the separation of the parties.  On 17 October 2011, the mother filed a Notice of Risk of Child Abuse in which she alluded to the fact that the child had marks on his inner thighs and had complained to her that he had a sore penis.  She alleged that some months prior to the separation, the child had commenced asking his father to “lie on” him at bedtime whilst at the same time, insisting that the mother not be present.  She said in the Notice that the child had commenced experiencing night terrors.  This evidence did not feature in a significant way in the affidavit upon which the wife relied for the purposes of this trial.  However, in her evidence, the mother said that there was an occasion in which she asked the father to care for the child because she was detained at a hospital associated with the problems of the care of her daughter.  She became aware that the father had bathed in the bath with the child and that the bathroom door was shut.  The exact significance of this was unclear but the mother did make it obvious that she had not approved of the father being naked in the bath with the child.  Apart from that, any physical or sexual impropriety by the father in relation to the child was not a significant feature of the hearing. 

12. In addition to the allegations mentioned in the 2011 notice to the Court, the mother reported that the father was under investigation by police relating to serious allegations of sexual abuse alleged by X.  The mother’s daughter was then 14 years of age. 

13. The filing of that notice precipitated the various documents on the court file being provided to the Department of Human Services. 

THE VARIOUS INTERIM HEARINGS

1. On 24 October 2011, the matter came before the Court and it was designated appropriate for the Magellan system of management by the Court.  The father was represented by counsel but did not pursue his application for time with the child reserving his right to do so later.  The matter was adjourned to 31 January 2012.  It would seem that the purpose of the adjournment was for the Court to be informed about the potential for the father to be charged by police arising out of the allegations made by the mother’s daughter.

2. On 31 January 2012, the Court requested that the Department of Human Services intervene and that a report be provided. The power for the Court to order the Department to do so lies in s 69ZW of the Family Law Act 1975 (Cth) (“the Act”) and s 69ZW(5) provides that any documents or information provided under the order must be admitted into evidence. In the trial, counsel for the Independent Children’s Lawyer asked the Court to rely upon the report dated 28 April 2012 albeit that some of the material may have been outdated.

3. On 6 March 2012, the matter was back before the Court and this time, it proceeded as a contested interim hearing before Senior Registrar FitzGibbon.  The Senior Registrar ordered that the father spend time with the child under supervision of a contact centre for two hours each fortnight.  The Senior Registrar noted that the father had been interviewed by the police and had largely give a “no comment” response.  He noted that the father had that absolute entitlement in law.  He then went on to say that no-one knew exactly what the allegations were with respect for the mother’s daughter save that they were suggested to be of a very serious kind.  He noted that nothing had been put to him in respect of the child.  He then concluded:

   It is a justifiable fear and concern of the mother operating as she has been without direct knowledge.

4. The Senior Registrar noted that the father suggested that the mother’s daughter was a girl who had led a troubled life.  He then balanced the various issues and noted particularly that criminal charges had not been laid.  He was concerned that further delay would damage and even irreparably damage, the ability of the child to have a relationship, and a meaningful one at that, with his father.  He referred to the evidence and his broad discretion and said that he was satisfied that the continuation of the child not seeing his father was not appropriate.  He then made the orders mentioned for limited supervised time.

5. It would seem that shortly after that hearing, the father was charged by police and as a consequence, the contact centre indicated that it was not prepared to supervise the time that had been ordered by the Senior Registrar.

THE ROLE OF THE GRANDPARENTS

1. It is important that I also digress here and return to the orders made by the Senior Registrar on 6 March 2012.   He also made an order that the paternal grandparents spend up to three hours every calendar month with the child.  That time was not to be at a contact centre but it was on the basis that the paternal grandparents undertook not to permit the child to have any form of contact with the father during their time.  Just what happened thereafter remained unclear but, after the father was charged by the police, the matter came back to court on 13 September 2012.  This time the hearing was before Macmillan J on a contravention application that had been filed by the father on 9 August 2012. 

2. With all parties represented by counsel, Macmillan J made orders by consent and in respect of the entitlement of time between the child and the grandparents, the following notation appears on the order:

   That the paternal grandparents have expressed their intention not to spend time with [the child] pursuant to paragraph 5 of the orders made on 6 March 2012 for the time being.

3. I find that even before the end of 2012, the child’s association with his paternal grandparents had come to an end and, as the evidence now appears, he has had no time with them over the last two years. 

4. During the cross-examination of the mother by the father, questions about his family were obliquely referred to.  As I observed, no application was before the Court by the grandparents.  Whilst there were also comments made by the father in response to that discussion about the mother having threatened the grandparents in some way, it is noticeable that twelve months has now gone by since the conviction and no such application has been made to this Court.  Furthermore, it is noticeable from the sentencing remarks to which I shall refer in a moment that there was a good relationship between the father and his parents.  Thus, I have concluded, the grandparents have chosen to stay out of the child’s life at this stage.

THE CRIMINAL LAW PROCEEDINGS

1. In late 2013, the father was convicted.  He was remanded for sentencing until early 2014.  The Judge of the County Court of Victoria noted that there were allegations of offending in the United Kingdom against the mother’s daughter by the father which had not been part of the charges before the Court.  Those she said, had been led in evidence by the prosecution to show background.  Thus, there was evidence that X was only nine years old when she was sexually abused by the father.  The abuse continued after the parties moved to Australia.  How this could continue unabated was explained by her Honour as follows:

   You told her this was a secret, it was a game and that her mother would be hurt if she knew.  You told her it was normal and she thought it was.

2. Her Honour noted the father’s lack of criminal background and the positive statement made about him by family and referees.  Those included the paternal grandfather and the father’s former wife.  In respect of rehabilitation, her Honour said it was a matter of conjecture because of the father’s denial of the charges and the absence of remorse.  It is to be noted that the father still maintains his innocence and that he says he intends to lodge an appeal against conviction.

3. Her Honour then remarked that the punishment had to reflect the court’s denunciation of the father’s behaviour because the sexual acts were forced upon a young girl who had been left in his care when the mother had gone to work.  The significance of that statement from the perspective of this Court contemplating parenting orders in respect of another child of the family, can be seen in the assessment of the father’s parental responsibility as well as the question of the impact on a child of family violence. 

4. Her Honour sentenced the father on the basis of what she described as “several aggravating features”. It is not necessary for me to detail those features save to say that each of them is a finding which I accept is a complete anathema to the community’s understanding of parenting and the rights of a child as reflected in s 60B of the Act. Thus, I must take into account those public denunciations as a reflection of community concern about the father’s capacity as a person as well as a parent. Those matters go to the question of whether there is an unacceptable risk of physical contact between the father and the child Y. Thus, notwithstanding his protestations of innocence, I accept the statements of the County Court judge remain the findings of the law.

5. Her Honour then sentenced the father to 13 years imprisonment with a minimum of ten years to be served before his eligibility to be released on parole.

THE FIRST HEARING IN THIS COURT AFTER SENTENCE

1. On 5 December 2013, a telephone hearing was conducted by Registrar Field at which all parties were represented.  The Registrar noted that the father had then been convicted and was awaiting sentence in early 2014.  Accordingly the matter was listed again for March 2014. 

2. On 5 March 2014, the father attended the hearing by telephone indicating to the Registrar that he was filing a Notice of Appeal as soon as he received a grant of legal aid.  The mother told the Registrar that she was then seeking sole parental responsibility for the child, a change of his surname to that which he uses at the moment along with the release to her of his passport which had been held by the Court as a result of the initial orders made in 2012.  It was also said that mother was not seeking to relocate to the United Kingdom.  That position was repeated by the mother in July 2014 before me but it is no longer her position. 

3. The matter came before me on 11 July 2014 but the father was not able to attend because the Court had not notified him.  It would seem that no-one had any idea at which prison he was held.  For that reason, the case was adjourned to 16 July 2014, at which time the father did attend by telephone.

4. On 16 July 2014, I made a variety of orders setting the matter down for trial to commence on 24 November 2014.  I specifically ordered that all evidence in chief of witnesses was to be given by affidavit and ordered a timetable be followed which included that by 1 October 2014, the father file and serve an amended application setting out with precision the orders that he was seeking.  That was important because at the time that he had filed his initiating application, the question of his physical incapacity through imprisonment was not relevant. 

5. On 16 July 2014 I also ordered that the father file by 1 October 2014 all affidavit material upon which he intended to rely.  The father did not comply. 

6. At the directions hearing, I made a specific order that if a party failed to comply with the timetable, a person who had complied could make an application to proceed on an undefended basis. I also noted on the order for the sake of completeness that affidavits relied upon in previous hearings could not be relied upon as evidence in chief in the final hearing without leave of the Court. Leaving aside the fact that that is in the Family Law Rules 2004, in this case, most of the evidence prior to the father’s conviction had little relevance by the time the case came to trial.

7. Because the father filed nothing, the mother sought to proceed on an undefended basis.  Before dealing with that issue, it is first important that I set out that the father made an application for an adjournment of the trial.

THE ADJOURNMENT APPLICATION

1. On 24 November 2014 in the physical absence of the father, Mr Trim of counsel appeared and sought an adjournment on his behalf.  The evidence to support the adjournment application was found in an affidavit sworn by counsel’s instructing solicitor.  Mr Trim’s application was opposed by both counsel for the mother and the Independent Children’s Lawyer.  For reasons separately given and which I shall not repeat, the application was rejected.  The father had not complied with the orders nor had he made any effort to comply.

2. I reject the father’s suggestion that he could do nothing because prison authorities had precluded his access to documents as well as his access to Victoria Legal Aid.  Those suggestions are rejected because it has transpired that, on the father’s own statement, his family law file was in storage with his lawyers and additionally, his parents had taken some of the documents that had been delivered to him or had been retained by him.  To the extent that he was hampered, if not denied, access to legal assistance, he still would have had the obligation under the orders that I made to file affidavit material.  He was a participant in the July hearing and there was a significant period of time between July and October let alone November for the father to file affidavit material. 

1. To the extent that the father maintained that he could not access computers, he made no such specific complaint.  He did indicate he could not save documents.  As it transpired, he has been dealing with a university organisation which he says is examining his conviction.  He could have sought assistance about access to materials for these proceedings but did not do so.  Furthermore, the father had written to the Court by letter dated 17 November 2014.  Indeed there were two letters.  To the extent that he therefore had needed access to the court for various pro forma forms, he seems not to have endeavoured to do anything like that.  Mr Trim’s instructing solicitor’s affidavit attached a copy of the father’s legal aid application.  The father was able to send that (albeit he would have the Court accept that it was delayed by the prison authorities) but when Victoria Legal Aid requested information, he seemed to be able to respond relatively quickly.

2. The father’s application therefore for an adjournment was refused and Mr Trim withdrew on the basis that legal aid had not funded him beyond that step.

THE APPLICATION TO PROCEED UNDEFENDED

1. Counsel for the mother sought an order that the father be excluded completely and that the application for orders by the mother proceed on an undefended basis.

2. There is no clear definition of what it means to conduct an undefended hearing.  Ultimately, justice must prevail.  The rules of procedural fairness need to be considered as part of that application to exclude a person who expresses a desire to participate.  In Allesch v Maunz(2000) 203 CLR 172; [2000] HCA 40 Kirby J noted that where a person may be adversely affected by a court’s decision, they must be afforded an opportunity to place before the court, such material, information and submissions before the decision is made so that justice is done. What is significant about those remarks is that it is not so much the evidence or submission that is important but the opportunity to provide them.

3. Thus, I am satisfied the father had ample opportunity to provide the affidavit material notwithstanding his protestations that the prison authorities somehow thwarted his access to the Court.  It is also important to observe that during this same period of time, the father was able to access the Victorian Court of Appeal as well as argue his appeal in relation to sentence.

4. Whilst I have made reference to the remarks of Kirby J above, it is also important to observe that the mother is the only parent now having the task of caring for the child.  One of the matters that the father raised in relation to this Court not proceeding was the fact that he was intending to appeal against his conviction.  I have already made mention of that but when I asked Mr Trim of counsel when this was going to happen, he said he was instructed that it would occur in the first quarter of next year.  There seemed little point therefore in continually keeping the child’s life on hold if the application was not going to be made until early 2015.  Obviously, the conviction would then be over 15 months old and it is hard to envisage an expeditious result.  For that reason the mother, not to mention the child, has a right to have the matter determined as well.

5. Although it was not in his application, the father’s counsel in the adjournment application told me that if the matter was adjourned, his client was going to seek to have contact with the child at the prison every two months.  When I challenged the father about that, he indicated that he accepted it would take some time to build up a relationship bearing in mind that he had not had any relationship with the child for three years.

6. As I observed at the time, the mother’s position from July had changed in that she was now indicating a desire to return to the United Kingdom and that would have thwarted any prospect of the father having any time with the child based upon his assertion that there should be time every second month.  For that reason, I rejected the mother’s counsel’s application for a complete exclusion of the father and permitted the father to cross-examine the mother.  I warned him that there were limitations on the cross-examination bearing in mind that he had no evidence that would have rebutted any answers given by the mother.

THE FATHER’S DOCUMENTS

1. Having complained that he did not have access to materials to enable him to participate, I had inquiries made (with his permission) of the prison authorities.  The father confirmed to me during the hearing that he had been given access to documents that had been sent to him by the Court.  Whether or not he had all of the documents on the court file, I am satisfied from his cross-examination of the mother that he was not bereft of information because he cross-examined her on issues of some significance to him and which, indeed, were relevant to the question of a relocation to the United Kingdom.

2. In one conversation however, the father indicated that he wanted transcripts of the proceedings in the County Court.  Apart from an attack on the mother’s credit, it was difficult to see how anything that she had said in that Court, would have made a lot of difference here.  I again observe that the mother is the only person who is able to care for the child at this time.  An attack on her credit must therefore have limited value.

3. I explained to the father prior to the commencement of his cross-examination about the process and whilst he repeated that he did not have legal aid to fully understand the ramifications, the questions he asked indicated that he was well-prepared for the issues that were in dispute.

THE MOTHER’S EVIDENCE

1. The mother’s evidence is accepted.  She was challenged by the father in cross-examination and I shall detail those matters below to indicate how I have contemplated the matters that the father wanted to put before the Court.

2. The mother acknowledged that she had been the sole person responsible for decisions about the child.  She said that she wanted to return to the United Kingdom where her mother and father now live in a suburban five bedroom home and she intended to move into that property.  She said that she would have a bedroom with all the usual furnishings, fittings and amenities.  She described her relationship with her parents as excellent and both of them had attended Australia at different times to support her.  She described the relationship with her family in the United Kingdom as large and close knit. 

3. The mother described her father’s business in which she had previously worked and she proposed to return to that. 

4. In relation to the maternal grandparents, the mother’s evidence was that there was a good relationship between her parents and X and that X felt secure in their company.  There is some significance in that bearing in mind the matters raised by the County Court judge.  In the hearing before the County Court on sentencing, X’s victim impact statement was read.  I think it is important in the context of the mother’s desire to live in the United Kingdom and to be with her family that I quote what the judge said:

   She said her daughter struggles to exist on a daily basis.  She is completely dependent on her mother and must know her whereabouts at all times.  She cannot leave the house alone.  She is extensively medicated and struggles to get out of bed each morning.  She has made 20 attempts at suicide and has harmed herself extensively by cutting herself and pulling out her hair…Her mother does not know if her daughter will ever recover.  She, herself, has had to give up work and live on Centrelink payments and she sees a counsellor herself and is on medication.

5. That evidence was repeated before this Court and not seriously challenged.  Having referred to those matters, the County Court judge said that it all spoke of profound psychological damage.  She noted that the effects of the father’s behaviour had been:

   Disastrous, even tragic.  Seldom does one hear of such serious consequences as have been caused to the victim in this case.

6. Whilst this case is about the child Y, I cannot ignore the impact of the damage on X as well as the mother arising out of the father’s conduct.  Those matters are relevant to the question of a relocation of the child to the United Kingdom.  That is particularly so where the mother’s proposal is the only realistic one before the Court.  Having said that, it is important to note that the father did challenge some of the details about what would be provided to the mother in the United Kingdom.  Before turning to those, I return to the mother’s evidence. 

7. The mother said that there was a local primary school in the United Kingdom five minutes away from her parents’ home where the child would attend with his cousins and she did not expect that there would be any problems in the transition to a new school.  She said he would be able to continue swimming and music lessons and she would place him in the local soccer club.  She thought that with the extended family, everyone would gain stability.  In addition, she saw economic benefits in moving to the United Kingdom because she did not expect to receive any child support from the father and as I have indicated, she is otherwise dependent upon the Australian taxpayers.

THE CONNECTION BETWEEN THE MOTHER’S DAUGHTER AND THE CHILD Y

1. It was the mother’s unchallenged evidence that her daughter was having counselling but that now seems to have stopped.  Despite that, not much has changed for X.  All of the matters that were mentioned by the County Court judge are now nine months old but the mother confirmed that little has changed.

2. The mother said that earlier this year the child Y began soiling himself on a daily basis and had night terrors and was demonstrating inappropriate sexualised behaviour.  She said that the child will not sleep in his own room.  He too has been having counselling and the mother described that as making progress.  She said he was better adjusted.  She also said that the psychologist had told her that the child’s behaviour was consistent with symptoms demonstrated by children who had suffered sexual abuse.

3. The mother said that from a financial perspective, she was reliant on social security payments and there were periods of time when she had no money.  She had been funded by her parents close to $200,000, a lot of which had been spent on legal fees, and her parents had provided her with a modest car.  Physically, the mother is now taking anti-depressants and has difficulty sleeping and concentrating.  She cannot work because she needs to be at home to care for her daughter.  There is no reason for this Court not to accept that evidence.

THE EVIDENCE OF DR A

1. In the interim period prior to the father’s conviction, the lawyers who were then acting for him sought expert advice from Dr A. 

2. Dr A is a consultant child and adolescent psychiatrist.  His evidence was relied upon by the Independent Children’s Lawyer.  Albeit that this advice was given to the father’s solicitors in September 2012, there are matters in it which still resonate today.  Dr A was aware of the allegations which at that stage remained unresolved. 

3. Dr A was asked about the importance of the child spending time with his father even on a supervised and limited basis.  He thought that at that time is was desirable but not essential because after twelve months of separation, the child was likely to have few conscious positive memories of his father.  No contact occurred after that advice was given and indeed, as is now the case, almost three years has gone by.

4. Dr A was asked about the short term effect on the child of having the mother’s daughter who was so disturbed and particularly whether the child would be aware of the emotional problems in the family.  He said it was hard to imagine the child was not aware even if he was not able to express his awareness verbally that his sister had experienced significant problems over the previous 18 months or so.  That must have some persuasive value bearing in mind that the child has watched his sister attend hospitals, not go to school, refuse to eat and appear distressed.

5. Dr A was then asked about the likely long-term effect upon the continued severance of the child from his father.  He said:

   There is evidence of the potential detrimental effect on a child on the severance of a relationship with important attachment figures.  Parents do die or leave and that the loss of such a relationship can certainly affect a child’s capacity for forming stable relationships because of the sense of loss and abandonment by an important figure.  However these matters must be weighed against the potential risks to a child of being exposed to a parent who has abused a half sibling, assuming that this allegation is established.

THE FATHER’S CROSS-EXAMINATION OF THE MOTHER

1. Some of the evidence to which I have just referred was the subject of cross-examination by the father.  His questions related to the determination about whether the child should live in the United Kingdom.  In respect of his opposition to that, he put to the mother and obtained her answers to the following specific issues:

   ·    Although she was claiming impecuniosity, she conceded that she smoked cigarettes and drank alcohol and indeed, so did her daughter.  He rhetorically asked how she could then say she struggled to buy food;

   ·    He queried whether she was receiving money from the overseas government and what had happened to some form of child endowment that she was receiving but her response was that she had notified the government some two weeks after arriving in Australia and as a consequence, no longer received it;

   ·    He queried whether during her period as a child her mother had been abusive towards her but she denied that;

   ·    He queried what she was paid when she worked for her father and what work would now be available to her in that environment and she indicated much as she had said in her affidavit to which I have already referred;

   ·    He asked her whether she had made threats to kill him and she conceded that she had (to this I return below);

   ·    He asked questions about her capacity to care for her daughter and she candidly conceded that she had difficulties because of her daughter’s problems;

   ·    He queried her about having locked one of his children in a shed but she denied that and he acknowledged that his allegations were coming from his children from his former marriage;

   ·    He asked questions about whether the mother had lied to police in the United Kingdom all of which the mother responded to by denials in a cogent way;

   ·    He asked questions about the nature of the relationship between the mother and his three children from the earlier marriage upon his arrival in Australia and he put to her that her evidence before the Court in a previous affidavit was inconsistent with her answer that he had otherwise had a good relationship.  Nothing turns on that bearing in mind that she is still going to be the unchallenged primary carer of these children;

   ·    He asked whether the relationship between he and the mother had been “turbulent” and she acknowledged that it had.  This was in the context of asking why if it was so, she had then pursued the application to come to Australia and she gave a plausible response.  She said that she was a person who was fiery and argumentative and indeed, they had fought a lot but she loved the father dearly at that time; and

   ·    She was asked about future communication if she went to the United Kingdom and she indicated that she would prefer that there was not any.  When he asked why that was the case, her simple response was that he was a convicted rapist and paedophile.

FAMILY VIOLENCE BY THE MOTHER

1. I have mentioned the mother’s concession that she had made threats to kill the father.  That needs to be seen in context.  She was charged by the police with two counts of making such threats one of which was withdrawn and the police otherwise asked for her to be included in what was described as a “diversion” program.  Nothing further was required of her.  I asked her to explain how this all came about.  She said that on the day in question, she had had “a nervous breakdown” because she found her daughter on railway tracks endeavouring to kill herself.  The father did not cross-examine the mother in any further detail about all of this but having regard to all of the matters that I have heard and in particular, the remarks of the County Court judge, I doubt very much whether there was much significance in the allegation of the father.

FUTURE COMMUNICATIONS

1. Notwithstanding the mother indicated in response to the father’s question that she would rather not have any contact with him in the future, her counsel conceded that he had instructions that if an order was made, she would comply by vetting whatever was sent to the child and ensuring that he received appropriate correspondence and presents.  I accept that assurance.

THE CHILD’S STEP-SIBLINGS

1. Little has been said in these reasons about the father’s other three children who are teenagers and the possibility of them having relationship with the child Y.  Doing the best I can with the vague evidence, it seems that these children do have some contact with the father but it would seem more likely than not that it is mostly by telephone.  Just what their understanding is of their father’s dilemma, I am unable to say.

2. The mother indicated that she wanted no contact with these children and in any event, the child has had no contact for the last three years.  In the same way as the grandparents have done nothing about this, neither has anything occurred in relation to the half-siblings.  These three children live with the father’s former wife who gave evidence for the father in the sentencing hearing but she provided no such evidence in this Court.  No application has been made to this Court for contact to occur.

THE NAME CHANGE 

1. The father did not seriously challenge the mother about the surname position simply saying that he had registered the child’s birth under his name and he thought that the issue was important for the child.  He said he would compromise with a hyphenated name if it resolved the matter.  However, the difficulty is that the child does not know of the father’s surname.  Although he is registered for school and medical treatment under that surname, he is known by everyone including his school under his mother’s surname.

2. I watched carefully when the mother was giving evidence bearing in mind that the father was on the telephone from prison and could not see her, but nothing I witnessed indicated that she was not a loving and caring mother who was deeply distressed by what had happened to her daughter and who saw little prospect of a positive relationship taking place between the child Y and the father.  It is also important to observe that there was virtually no cross-examination by the Independent Children’s Lawyer of the mother.

THE LEGAL ISSUES

1. Part VII of the Act provides the statutory pathway along which the Court must travel for the purposes of exercising its power to make parenting orders.

2. Section 60B of the Act sets out the objects of Part VII and these I have previously described as the aspirations of the community for its children but they also provide a guide for the Court to contemplate the rights of children when determining how their best interests are served.

3. Section 60CA provides that when making a particular parenting order, the Court must regard the best interests of the child as the paramount consideration.  Thus by the use of the word “paramount”, the parliament must have intended that there were other considerations that needed to be contemplated but where there was a conflict, the child’s best interests were paramount.

4. Section 60CC provides a variety of considerations which are divided into primary and additional considerations.  These are matters that the Court must consider in determining what is in the child’s best interests.

SECTION 60CC

1. There is a clear delineation in s 60CC between the benefit of a child having a meaningful relationship with both parents as against the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.  Since 2012, the conflict, if it existed, between those two provisions was clarified by an amendment to indicate that the protection of the child took priority over the meaningful relationship.  This particular application was filed prior to the amendments.  The old provisions therefore apply but common sense dictates that it is more important to protect the child from physical or psychological harm from being exposed to the sort of things so described than having a meaningful relationship with his parent who is the cause of those dilemmas.

SECTION 60CC(2)

1. There is no meaningful relationship between the child and his father at the moment but the focus of s 60CC(2) is on the benefit that the child might receive from having such a relationship with both of his parents.  There is little to be said for the proposal put by the father.  He acknowledged that the child has no relationship with him at the moment and that consequently, I find there is no attachment.  Questions by the child about his father have been avoided by the mother.  To the extent that the father remains a prisoner, the prospect of even the limited nature of the relationship contemplated by him suggests very little benefit for the child during the next few years.  To the extent that some form of correspondence over the ensuring years activates an interest by the child, the father can make a further attempt to commence a meaningful relationship from which the child might benefit.  At the moment, I find there is no benefit for him in having any relationship with his father of a physical nature but the prospect of having some limited communication might at least enable the child to understand that he has a father.  Conversely, it is extremely important that the child’s relationship with his mother is not destabilised.  The child is aware of the existence of the problems of his sister and I accept what Dr A said in 2012.

2. It is important to protect the child from family violence.  In that sense, there is no prospect of the parents having anything to do with one another but again, the evidence of Dr A combined with the statements of the County Court judge indicates that the child currently needs to be excluded from any understanding of what the father has done to his sister.

SECTION 60CC(A)

1. I accept the evidence of the mother that the child has not asked for his father except on two occasions and in both of those, she has simply avoided the issue.  None of the father’s extended family has made any attempt to participate in the proceedings but more importantly, foster a relationship with the child.  At six years of age, it is difficult to see how any view he could hold would have any weight in any event.

SECTION 60CC(B), (E), (F), (I) AND (J)

1. A variety of considerations in s 60CC relates to the approach that the father has taken as a parent.  There is now no relationship between the father and the child and, as I have earlier indicated, his conduct as a parent based on what the County Court judge said, must be seen to be seriously lacking.  Family violence impacts upon children even though they may not be the direct recipients of the problem because of the nature of the relationship of the child and the other parent and in this case, siblings.  The child clearly has been exposed to family violence or at least its effects as a result of the father’s behaviour towards X.

2. The Court is obliged to look at the question of the attitude to the child and the responsibilities of parenthood.  The father was thwarted from having any contact with the child by virtue of the contact centre declining to carry out the Court’s order and that is understandable in the circumstances.

3. Despite all of the veiled criticisms of the mother by the father through his cross-examination, she is the unchallenged carer of the childe.  He made an oblique reference to the fact that if she returned to the United Kingdom, she would be arrested and prosecuted.  She was not at all concerned about that from my observation.

4. The Court is also obliged to look at the capacity of other persons to provide for the needs of the child.  Despite the father’s cross-examination of the mother, I accept that there is a stable home in the United Kingdom with the prospect of assistance in relation to both children and also work for the mother.  Here in Australia, the mother faces the prospect of having to continue to care for her daughter X and to have no financial assistance from the father relating to the child Y save for the taxpayers’ assistance.  There is a real prospect therefore that the financial position and lifestyle for the child can be improved by the mother’s return to the United Kingdom. 

OTHER MATTERS IN S 60CC(3), (4) AND (4A)

1. I have contemplated all of the things that have occurred over the last three years of the child’s life and there is little doubt that the mother’s world was turned upside down as a result of the allegations by her daughter against the father.  Unfortunately, the child has been swept up in all of that because he has been totally dependent upon the mother and the father’s absence from the child’s life has meant that there is no figure that he understands as a father.  I cannot create a relationship between the child and his father and even if the mother remained in Australia, little would change other than the periodic visits proposed by the father to the prison all of which may take a long time to develop and in any event, could have an adverse impact on the child if he was suddenly informed of what his father had done to his sister.  I have no evidence as to how that would affect the child but I do take notice of the fact that the mother’s evidence is that the child is seeing a psychologist and is now starting to progress well.  I find therefore, on an analysis of all of the relevant s 60CC factors that there is little, if any, benefit for the child in the father’s proposals both as to time and the retention of the mother in Australia.  I find the best interests of the child require that the Court adopt the mother’s proposal about the physical and emotional care of the child.  Nothing in the evidence of the mother suggested she was not doing an adequate, if not proper job.

2. Section 64B of the Act provides the power for the Court to make a parenting order. That however is subject to s 61DA of the Act. That requires the Court to apply a presumption that it is in the best interests of a child for the parents to have equal shared parental responsibility. That presumption does not apply in two circumstances. The first relates to family violence and the second relates to the situation where the Court exercises discretion on the basis that it finds that it is not in the best interests of the child for the parents to have equal shared parental responsibility. There is little doubt in this case that there has been significant family violence. I am not in a position to say that the father’s behaviour towards the child was improper in a physical or sexual sense but I have no doubt based on the finding of the jury and the sentence of the court that the child is affected by the abuse of his sister. The presumption must therefore be rebutted.

PARENTAL RESPONSIBILITY

1. Despite the rebuttal of the presumption, it is still important to contemplate whether any role of a father in decision-making could benefit the child. If an order was made for equal shared parental responsibility, s 65DAC of the Act sets out the obligations that the order provides for and requires of the parents. In essence in this case, there is no prospect of any of those things working. The mother made her feelings towards the father very clear when she described him as a rapist and a paedophile. Her sentiments are understandable.

2. It is better for the child’s interests that the mother continue to make the decisions that she has. 

UNITED KINGDOM?

1. On balance, there is nothing for the child in Australia bearing in mind his dependence on his mother.  The faint prospect of his father being released early if the conviction was quashed is not something that I can seriously contemplate.  The prospect of a relationship between the child and his father developing by virtue of some sort of prison visit is outweighed by the fact that the child would have to remain here without the support of the extended family that the mother needs.  In my view it is in the child’s best interest that he lives in the United Kingdom.

The name change

1. As earlier mentioned, the child is known by the mother’s surname and has no understanding of his father’s surname.  The father’s sentiments, whilst emotionally understandable, have little value in this case.  As observed by the counsel for the Independent Children’s Lawyer, the father has a child from another relationship apart from the three children earlier mentioned and he has no contact with that child at all.  That child presumably does not bear his surname either.

2. In determining the best interests of the child, my view is that the child is too young to understand the concept of the surname and, at this age, identification is not an issue for him.  Accordingly, it is more sensible that he uses the mother’s name and accordingly I propose to give her permission to alter all of the relevant official records.

COMMUNICATION

1. Albeit with some hesitation, I consider it might be in the child’s interest in the future to know that there is a father and providing correspondence is written responsibly and vetted by the mother, I see the child at least knowing that his father exists at a point in time where his cognitive development is such that he asks those questions about his own identity.  For that reason, I propose to make an order that the father be given the permission to write to the child and indeed send presents if that is practicable but those will all be vetted by the mother.  I think it is important that she acknowledges to the father that the correspondence or gifts have been given to the child and for that reason, I propose that she writes acknowledging what has occurred but I see that as an imposition on her as well so that I will make an order that it only happens twice per year.

I certify that the preceding eighty nine (89) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 3 December 2014.

Associate: 

Date:  3 December 2014