OGILVY & OGILVY

[2014] FamCA 697

FAMILY COURT OF AUSTRALIA

OGILVY & OGILVY [2014] FamCA 697

FAMILY LAW – CHILDREN – With whom a child lives – Best Interests of the child - Where previous orders included a suite of orders intended to effect reunification between the child and the father using the assistance of psychological counselling - Where father has since disengaged from proceedings - Where child made disclosures to the counsellor of sexually orientated activity by the father to the child – Where counsellor refused to continue further reunification counselling – Where child has constantly expressed fear of the father and a disinclination to have anything to do with him – Where weight given to the child’s views – Where child’s primary attachment is the mother – Where child has close sibling bonds with older three siblings – Where father has previously sent inappropriate text messages to the child – Where father has not paid child support since separation – Where court satisfied the father has a very poor capacity to provide for the needs of the child, particularly emotional needs – Where court satisfied the father’s attitude to the child and responsibilities of parenthood is poor – Where mother has been the child’s primary carer since birth  - Where mother is the only contender for the primary care of the child – Where court satisfied it is in the best interest of the child to live with the mother.

FAMILY LAW – CHILDREN – With whom a child lives – Family Violence – Where court noted family violence was likely to have cause the fear with the child expresses of the father and the child’s disinclination to spend any time or communicate with the father - Where father admits he has engaged in bad on wrongful behaviour on occasion – Where court satisfied the father’s past behaviour and personality raised as a real consideration, the need to protect the child from the effects of his behaviours he demonstrated from time to time.

CHILDREN – Parental Responsibility – Where presumption of ESPR does not apply – Where father no longer seeks attribution of parental responsibility to himself – Where court satisfied parental responsibility should flow to the primary carer – Where court satisfied it is in the best interests of the child that the mother have sole parental responsibility.

FAMILY LAW – CHILDREN – With whom a child spends time – Where only controversial matter in proceedings was whether the child should spend time with the father – Where mother sought orders that the father have no direct or indirect contact with the child without her written consent being obtained - Where court noted that such orders restricting a parent from having any contact whatsoever with a child are reserved for cases in which there are findings of an unacceptable risk of harm of sexual, physical or emotional harm, or some other gravely disentitling conduct, none of which were pressed in these proceedings – Where court was satisfied, notwithstanding such order was in effect draconian in nature, that is was in the child’s best interests to have no contact with the father without the written consent of the mother.

Family Law Act 1975 (Cth) s 60CC, 60 CA, 61DA, 65DAA, 65 DAC
Evidence Act 1995 (Cth) s 140

Neat Holdings Pty Ltd v Karajan & Holdings Pty Ltd (1992) 67 ALJR 170

APPLICANT: Ms Ogilvy

RESPONDENT: Mr Ogilvy

INDEPENDENT CHILDREN’S LAWYER: Ms Gray

FILE NUMBER: CSC 236 of 2011

DATE DELIVERED: 15 August 2014

PLACE DELIVERED: H Town

PLACE HEARD: H Town

JUDGMENT OF: Tree J

HEARING DATE: 15 August 2014

REPRESENTATION

SOLICITORS FOR THE APPLICANT: Legal Aid Queensland

THE RESPONDENT:

SOLICITORS FOR THE INDEPENDENT
CHILDREN’S LAWYER

No appearance

Susan Gray

Orders

1. All previous parenting orders be discharged.

1. The child B (the child) born … 2003 live with the mother.

1. The mother have sole parental responsibility for the decisions in relation to the long-term care, welfare and development of the child, including but not limited to:

(a)the child’s education (both current and future);

(b)the child’s religious and cultural upbringing;

(c)the child’s health;

(d)the child’s name.

1. The father is to have no contact with the child B born … 2003 except with the consent of the mother first obtained.

1. Otherwise all extant applications be dismissed and the matter be removed from the list of active pending cases.

1. The Independent Children's Lawyer is forthwith discharged with the thanks of the court upon the later of the expiration of the appeal period in respect of these orders, or the determination of any appeal.

1. All subpoena materials be returned to the party producing them.  

IT IS NOTED that publication of this judgment by this Court under the pseudonym Ogilvy & Ogilvy 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 H TOWN

FILE NUMBER: CSC 236 of 2011

Ms Ogilvy

Applicant

And

Mr Ogilvy

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

INTRODUCTION

1. These proceedings relate to parenting orders pertaining to the child B, born in 2003, who is therefore approaching 11 years of age.  The only parties to appear before me today were the applicant mother and the Independent Children’s Lawyer.  The father has disengaged from the proceedings and indeed, on 30 January 2014, filed a notice of discontinuance in which he specifically identified that he was discontinuing his Response to the mother’s Initiating Application, that response having been filed on 28 July 2011 and, further, his Amended Response filed 21 August 2012.  Shortly thereafter his solicitors filed a Notice of Ceasing to Act and thereafter the father has had no involvement in the proceedings. 

2. The history of the matter is a little complex however suffice to note that by order made by consent on 4 March 2013, which order was consequent upon the commencement of a trial before Benjamin J, the parties agreed on a regime of interim orders pursuant to which the mother had sole parental responsibility for the child, who was to live with her.  However there was also a suite of orders intended to effect reunification between the child and the father using the assistance of psychological counselling, with a view to having the father commence to spend supervised time with the child, and the matter thereafter being reviewed by the court in about eight months time.

3. In fact, the parties’ intentions in those orders were not able to be attained, because during the course of the second session of counselling between the reunification counsellor, a Ms C, and the child, there were disclosures made which suggested that the father had sexually engaged with the child by requiring her to wash his penis when showering with her.  Amongst the disclosures made by the child on that occasion which are referred to in Ms C’s affidavit filed 12 August 2014 are, “I have to touch dad’s doodle”, that he would say, “If you don’t clean it you will only get a little bit of dinner”, “that it happened every time I have a shower, maybe every two days”, that the father said, “you can’t tell anyone or I will hurt you” and the child disclosed that “I used to feel depressed”.

4. It will be appreciated that whilst it might seem unremarkable for very young children to shower with their parents, irrespective of what age the child was when the events she is referring to occurred, there are aspects of her disclosures which are inconsistent with an innocent co-showering, particularly the suggestion that she had to clean the father’s penis, that if she did not do so, then her food would be reduced, and finally the assertion that the father had said to her that she was not to tell anyone or he would hurt her.

5. Correctly, in my view, the psychologist, Ms C, identified that those were consistent with disclosures of sexually orientated activity, rather than innocent activity, and therefore refused to continue further reunification counselling.  Although when the father subsequently appeared before me in July of 2013 he expressed an intention to continue on with the trial, in fact, as I have indicated, he thereafter has ceased any involvement with these proceedings.

6. When the proceedings came before me today initially the mother was seeking orders that the child live with her and that she have sole parental responsibility for her, and that the father is to have no contact with the child, and is not to go within 50 metres of the child’s residence or place of schooling.  However, during the course of the discussion which ensued between the Bench and the solicitor for the mother, the orders in relation to no contact with the child were changed so that the relevant order sought reads:

   The father is to have no contact, whether direct or indirect, with the child [B] without the written consent of the mother first obtained.

   The order in relation to the prohibition on the father approaching the child’s residence or school was not pressed. 

7. Those orders, as amended, were supported by the Independent Children’s Lawyer, Ms Gray.  Part of the explanation for the mother’s change lay from something of a curiosity of these proceedings, which although undefended, nonetheless involved a conflict between the observations and opinions of the Family Report writer, Mr D, on the one hand, and the mother on the other.

8. The mother had been intending upon pressing for a finding by me that the father posed an unacceptable risk of sexual harm to the child and on that basis justified the orders that she was initially seeking.  However, Mr D expressed strong opinions in his Family Report to the effect that he was of the belief that the mother had coached the disclosures of sexual misconduct on the part of the father from the child, and that the child was heavily enmeshed in the litigation between the mother and the father and had invested in the mother’s case.

9. Ultimately, in view of the difficulties which the conflict between Mr D and the mother’s evidence presented, the mother did not press a finding of unacceptable risk in relation to the father. 

BACKGROUND FACTS

1. The mother was born in 1964 and is therefore presently 49 years of age.  The father was born in 1967 and is therefore presently 47 years of age.  The parties commenced a relationship in March 2002 when they were respectively 38 and 35 years of age.  At the time they met, the mother already had three children to an earlier relationship, being Ms E (born in 1994, and therefore presently 20 years of age); Ms F (born in 1995, and therefore presently 18 years of age) and G (born in 1998, presently 15 years of age).

2. The parties’ married in 2003 and the child was born some five days later.

3. During the relationship the father conducted a business.  It appeared to run into difficulties in Sydney, and in consequence in 2005 they moved to Brisbane.  The mother alleges that at about this time serious family violence commenced in front of the children.  This appears to be at least in some substantial respects, conceded by the father, although he characterises it more in the nature of arguments.

4. In 2006 the parties moved to H Town.  The mother alleges that the violence continued.  Further, very serious disclosures were made by the child Ms E to the mother in November 2010 involving the sexual assault of her by the father.

5. On 17 January 2011 the parties separated and have not thereafter cohabited.

REVELANT LEGAL PRINCIPLES

The statutory regime

1. A convenient starting point is s61DA of the Family Law Act, which by sub-s(1), provides that the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. In the event that, either because that presumption applies, or because it is otherwise in the child’s best interests that there be an order providing for equal shared parental responsibility, the court is obliged pursuant to s65DAA(1) to then consider certain matters, including whether the child should spend equal time with each of the parents, or substantial and significant time.

2. However s.61DA(2) provides that the presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in either abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family) or family violence. Further, subs61DA(4) provides that the presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for its parents to have equal shared parental responsibility.

3. In this context is convenient to also advert to s65DAC, which sets out the effect of a parenting order that provides for shared parental responsibility. By subs(3) such an order is taken to require each of the persons subject to it to consult with the other person in relation to the decision to be made about any major long-term issue in relation to the child, and make a genuine effort to come to a joint decision about that issue. It can therefore be seen that the obligations which an order effecting equal shared parental responsibility imposes are potentially onerous.

4. Finally s.60CA provides that in deciding whether to make a particular parenting order, the court must regard the best interests of the child as the paramount consideration. The matters which a court must have regard to in determining the best interests of a child are set out in s.60CC.

The standard of satisfaction required

1. S.140 of the Evidence Act (Cth) provides as follows:

   140(1) In a civil proceeding, the Court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.

   (2) Without limiting the matters that the Court may take into account in deciding whether it is so satisfied, it is to take into account:

   (a)      the nature of the cause of action or defence;

   (b)      the nature of the subject-matter of the proceedings;

   (c)      the gravity of the matters alleged.

2. In Neat Holdings Pty Ltd v Karajan & Holdings Pty Ltd (1992) 67 ALJR 170 at 170-171 the majority of the High Court stated:

   The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities.  That remains so even where the matter to be proved involves criminal conduct or fraud.  On the other hand the strength of the evidence necessary to establish a fact or fact on the balance of probabilities may vary according to the nature of what it is sought to prove.  Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary “where so serious a matter as fraud is to be found”.  Statements to that effect should not, however, be understood as directed to the standard of proof.  Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a Court should not likely make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct.

TRAVERSE OF S60CC CONSIDERATIONS

1. I turn firstly to s60CC(1)(a) which is the benefit of the child of having a meaningful relationship with both parents.  There is no suggestion on the material before me that the child would not benefit from having a meaningful relationship with the mother.  There is no need to discuss that further in these reasons.  On the other hand, there are aspects of the material which cast real doubt upon the benefit of the child having a meaningful relationship with her father.

2. Firstly, the child has constantly expressed fear of the father and a disinclination to have anything to do with him.  That fear appears to have some real factual basis in that the father himself admits that he was verbally abusive to the mother in the presence of the children during the course of the relationship, and that he would swear at the three other children which the mother had brought into that relationship.  At paragraph 12 of his affidavit filed 21 August 2012 he said:

   I accept that my behaviour on occasions was bad and wrong for the children when I would throw tantrums around the house or slam doors.

3. Inevitably, that conceded behaviour provides a foundation for the child’s fear of her father.  Moreover, it appears to be uncontroversial that during the course of the relationship the father favoured his biological child, B, over her three older siblings.  That inevitably would have created tension within the family and laid the groundwork for a toxic dynamic within the home.  Moreover, Dr I, who examined the father for the purposes of preparing a psychiatric report, identified that the father’s personality was one that was forceful, that did not readily adapt to the views or requirements of others and that he would be likely perceived as a dominant and overbearing personality by others.  Whilst I do not wholly discount the benefit to the child of having a meaningful relationship with her father, plainly there are many negative aspects to any such relationship. 

4. Turning, then, to the second primary consideration, namely the need to protect the child from physical or psychological harm or being subjected to or exposed to abuse, neglect or family violence, as I have already identified, the father admits to conduct which would comprise family violence as defined in the Act.  There is nothing in the material which would suggest that the father’s conduct is likely to modify in the future.  Particularly, I note again the psychiatric report in relation to him which suggests that such conduct is likely to be a part of his usual repertoire of interactions with others.

5. I have already noted that the mother did not press for a finding that the father presented an unacceptable risk of harm.  There is no suggestion that the mother presents as an unacceptable risk of harm.  Therefore, I conclude that the father’s behaviour in the past and his personality does raise, as a real consideration, the need to protect the child from the effects of his behaviours and any violent or aggressive behaviours which he demonstrates from time to time.

6. Turning then to additional considerations, the first is contained in s60CC(3)(a).  The views expressed by the child in recent years have uniformly been that she does not wish to have anything to do with her father.  She is now nearly 11 years of age.  The last formal expression of her views was when she was either 10 or about to turn 10.  I give those views some weight, although I do note the allegation of coaching which Mr D was satisfied was established in relation to the mother.  That said, nonetheless, I give the child’s views weight.

7. Turning then to s60CC(3)(b) which pertains to the nature of the relationship with the child’s parents and other persons, the child plainly has a good relationship with her mother.  She has lived with her mother all of her life.  Her primary attachment would be with her mother, and she has close sibling bonds with her elder three siblings.  There is nothing to suggest that her relationship with her mother or her elder siblings is fractured or dysfunctional in any sense.  Plainly those relationships are important to her.

8. Turning then to s60CC(3)(c), the father has been keen to spend time with the child and communicate with the child, at least up until 2013.  However, it has to be said that the father’s attempts to communicate with the child were seriously misguided.  He apparently was a prolific sender of text messages to the child, some of which are appended to the mother’s affidavit, filed 27 July 2012.  It is unnecessary to repeat any examples of those.  The mother says they were inappropriate.  Dr I says that they were highly inappropriate, and the father apparently also appears to concede that they were inappropriate.  They were.  I have little confidence that if the father were to again attempt communication with the child, that he would not lapse into such inappropriate communications again.

1. Further, I observe that on occasions when the father has spent supervised time with the child prior to February 2013, his behaviour was at times poor.  On occasions supervisors at the H Town Contact Centre had to intervene to stop him making inappropriate communications.  They had to intervene to stop him bringing excessive gifts.  Moreover, on one occasion it appears as though the father brought with him to a contact visit toys which were the child’s toys which he had retained, showed them to her, and then refused to let her take them with her but, rather, took them back with him.  One can infer that the purpose of doing so was to create a desire in her to spend time with him because her possessions were retained by him.  It therefore can be seen that there are real questions hovering over the father’s time that he has spent with her even under supervision.

2. As to s60CC(3)(ca), the father, it appears, since separation not paid any child support in relation to the child, and has made no effort to otherwise maintain her.  That is a matter upon which I place some weight. 

3. Turning then to s60CC(3)(d), the likely effect of any changes in the child’s circumstances, the orders proposed by the mother do not effect any change in the child’s circumstances.  As to s60CC(3)(e), that is not engaged in this case.  However, s60CC(3)(f) clearly is.  That pertains to the capacity of each of the child’s parents to provide for the needs of the child, including emotional and intellectual needs.  Whilst the father has conceded that his conduct during the course of the relationship was poor, abusive and aggressive, which might suggest he has some insight, there is, nonetheless, a long history of such behaviour and no indication that at the time he had any insight as to the impact, or likely impact, of such behaviour upon not only the child, but the other members of her family, and the way in which that might impact upon her inter-relationships with her other siblings.

4. It appears plain that the father regularly and overtly demonstrated his preference for the child over the other children, presumably because of a biological connection between him and her, and, in doing so, failed to appreciate the important sibling bonds she had with her sisters and brother.  Further, the father on many occasions indicated that he intended to take the child away from the mother as soon as she was old enough to do so, thereby depriving her of the continuing enjoyment of her sibling bonds, to say nothing of the continuing care and relationship with her mother.  The fact that he was prepared to articulate those intentions in front of the child and the other family members casts grave doubt as to his capacity to provide for the emotional needs of the child.  I conclude that the father has a very poor capacity to provide for the needs of the child, particularly her emotional needs.

5. S60CC(3)(g) is not engaged, nor is 60CC(h).  S60CC(i) is clearly relevant, being the attitude to the child and the responsibilities of parenthood demonstrated by each of the child’s parents.  Save for the allegation of coaching, there is no criticism of the mother’s attitude to the child or her approach to parenthood.  She appears to have raised all four children in a good manner. 

6. On the other hand, it is plain from what I have already said that there are grave doubts about the father’s attitude to the child and responsibilities of parenthood.  The fact that he was prepared to overtly favour the child over her siblings is poor, and perhaps even cruel.  The fact that he was, apparently, willing to concede in interviews that the other three children “hated his guts” is reflective of his attitude to the responsibilities of parenthood, or at least his responsibilities as an adult member of a household involving three siblings of his biological child.  I conclude that the attitude of the father to the child and to the responsibilities of parenthood is poor.

7. Turning then to family violence, there is a long history of family violence in this matter.  It has ranged over many years involving, amongst other things, the father punching holes in walls, smashing a windscreen of a car that was then travelling at 80 kilometres an hour, and regular abuse, arguments and the like.  That is inevitably likely to have caused the fear which the child expresses of her father, and her disinclination to spend any time with him or communicate with him. 

8. Somewhat worryingly, it appears as though the family, once they had left the family home at the time of separation, experienced a sense of freedom and, indeed, are recorded in the material as contemporaneously expressing a sense of freedom at being free of the father, his behaviours and controlling behaviours. 

9. As to s60CC(3)(k), although a family violence order has applied, I note that that was made without admission by the father and, therefore, there are no inferences which can be drawn from it.  In any event, it would add nothing to the long history of family violence which the father has perpetrated. 

10. S60CC(3)(l) is relevant.  The orders which are proposed by the mother would be likely to lead to no further proceedings in relation to the child.

11. As to s60CC(3)(m), being any other fact or circumstance that the court thinks relevant, in my view, there is a further circumstance that is relevant and that is the father’s discontinuance of his involvement in these proceedings.  He appears to have given up on having any form of communication or relationship with the child.  Whether that be because he concedes that he was likely to have no success in any such proceedings, or whether there is a deeper concession, namely that he did, indeed, misconduct himself in the ways alleged, is unclear.  Nonetheless, the fact that he wants to have, it appears, no further involvement with the child, is a relevant fact or circumstance.

PARENTAL RESPONSIBILITY

1. I turn then to consider the orders which are proposed, and firstly, to a consideration of parental responsibility. The presumption in s61DA plainly does not apply in these circumstances. There is more than a reasonable basis for thinking that there was family violence; I find that there was family violence as a matter of fact. In any event, the father no longer seeks the attribution of parental responsibility to himself. In my view, parental responsibility inevitably should flow with the primary care in this circumstance, (which as shall be seen, will be with the mother) and I am satisfied that it is in the child’s best interest that the mother have sole parental responsibility in relation to the child.

LIVING ARRANGEMENTS

1. I then turn to a consideration of the living arrangements that should be the subject of order.  The mother is the only contender for the primary care of the child.  The child’s primary attachment is with her mother.  She has always lived with her mother.  She has always cohabited with her three siblings who, it would appear, continue to live with the mother.  She has a close bond with those siblings.  It must be in her best interests that she live with the mother, and I will so order.

TIME AND COMMUNICATION WITH THE FATHER

1. I then turn to a consideration of the only really controversial matter in these proceedings, and that is the time, if any, that the child should spend with the father.  It will be remembered that the mother seeks an order that the father is to have no contact, direct or indirect, with the child without her written consent first obtained.  Ordinarily, orders restricting a parent from having any contact whatsoever with a child are reserved for cases in which there are findings of an unacceptable risk of sexual, physical or emotional harm, or some other gravely disentitling conduct, but here, as I have indicated, there is no finding of unacceptable risk which is pressed upon me. 

2. I am conscious that the order sought that the father have no contact, except with the mother’s permission, in effect, is draconian in nature.  However, Mr Mackey, who appeared as the mother’s solicitor, identified the following matters as justifying such an order. 

3. The first is that the father’s relationship with the child appears to have been a poor one at the time of separation, and thereafter has not been repaired.  Secondly, he says that the child expresses real fear of the father and has done so over a long period of time now.  Thirdly, he says that on 4 March 2013 the parties agreed, and the Court accepted, that before the father spent any time with the child, there needed to be reunification counselling, and a review of any success or otherwise of it.  Fourthly, he says that such counselling was abandoned because the child continued to disclose inappropriate sexual conduct on the part of the father towards her.  Finally, he says that absent any reunification counselling having successfully concluded or, alternatively, the child exhibiting sufficient maturity, contact of any kind between the father and the child risks real emotional harm to her.  I accept those submissions. 

4. Therefore, notwithstanding the somewhat draconian nature of the order which is sought by the mother, and supported by the Independent Children’s Lawyer, I am nonetheless satisfied that it is in the child’s best interests that she have no contact with her father without the written consent of the mother first obtained.  In doing so I am mindful that the mother accepted in March 2013 that reunification counselling was a necessary precondition to the establishment of any contact between the father and the child, and that she is likely, therefore, to responsibly require such counselling in the event that there is to be any further contact or, alternatively, be satisfied that the child is of sufficient maturity to re-establish contact with her father without such counselling. 

CONCLUSION

1. There will therefore be orders in the terms as sought by the mother. 

I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 15 August 2014.

Associate:

Date:  15 August 2014