PLUME & NEVIN
[2015] FamCA 477
•23 June 2015
FAMILY COURT OF AUSTRALIA
| PLUME & NEVIN | [2015] FamCA 477 |
| FAMILY LAW – CHILDREN – Best Interests – Magellan protocol – Where the child has meaningful relationships with both parents – Where, even in aggregation, the evidence did not establish that the child was at risk of either physical or psychological harm through his sexual abuse or his involvement in some form of sexual impropriety by the father – Where the evidence overwhelmingly established the child has been, and remains, immersed in an environment of profanity and distorted parental instruction – Where there were aspects of the evidence which impinged upon the mother’s parenting capacity, but the father conceded the child should continue to live with the mother – Child to spend regular time with the father, structured around the child’s educational commitments and the father’s proximity to the mother’s residence FAMILY LAW – CHILDREN – Parental Responsibility – Where the evidence was insufficiently strong to rebut the presumption of equal shared parental responsibility – Parties to have equal shared parental responsibility |
| Evidence Act 1995 (Cth), s 140 Family Law Act 1975 (Cth), ss 4, 60B, 60CA, 60CC, 61B, 61DA, 62B, 64B, 65AA, 65DA, 65DAA, 65DAC, 65DAE, 65D, 65LA |
| H & K [2001] FamCA 687 Re Andrew (1996) 20 Fam LR 538 |
| APPLICANT: | Ms Plume |
| RESPONDENT: | Mr Nevin |
| INDEPENDENT CHILDREN’S LAWYER: | Mr Coyle, The Family Law Firm |
| FILE NUMBER: | NCC | 2209 | of | 2014 |
| DATE DELIVERED: | 23 June 2015 |
| PLACE DELIVERED: | Newcastle |
| PLACE HEARD: | Newcastle |
| JUDGMENT OF: | Austin J |
| HEARING DATE: | 9, 10 & 11 June 2015 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Conte-Mills |
| SOLICITOR FOR THE APPLICANT: | Craney Family Solicitors |
| COUNSEL FOR THE RESPONDENT: | Mr Wilkinson |
| SOLICITOR FOR THE RESPONDENT: | Stuart Percy & Associates |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Not Applicable |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Coyle, The Family Law Firm |
Orders
All former orders relating to the child B, born … 2011, (“the child”) are discharged.
The parties shall have equal shared parental responsibility for the child.
The child shall live with the mother.
Each of the parties shall take all reasonable steps to ensure that the child spends time with the father as follows, or as otherwise agreed:
(a)While ever the father lives within a radius of 150 kilometres from the mother’s residence:
(i)Until Monday 28 September 2015, each alternate Saturday and Sunday, from 10.00 am until 4.00 pm each day, commencing on the first Saturday and Sunday following these orders;
(ii)Thereafter until Monday 28 December 2015, each alternate weekend from 10.00 am Saturday until 4.00 pm on Sunday, commencing on the second Saturday after the last visit pursuant to Order 4(a)(i) hereof;
(iii)Thereafter until Monday 28 March 2016, each alternate weekend from 6.00 pm on Friday until 6.00 pm on Sunday, commencing on the second Friday after the last visit pursuant to Order 4(a)(ii) hereof;
(iv)Thereafter until the child commences school:
(A)Each alternate weekend from 6.00 pm on Friday until 6.00 pm on Sunday, commencing on the second Friday after the last visit pursuant to Order 4(a)(iii) hereof; and
(B)For the first four consecutive days of each school holiday period, commencing at 6.00 pm on the last day of school term until 6.00 pm on the fourth day thereafter; and
(v)After the child commences school:
(A)
During school terms, each alternate weekend from
6.00 pm on Friday until 6.00 pm on Sunday, commencing on the first Friday of each school term;
(B)For the first seven days of the Autumn, Winter, and Spring school holidays, commencing at 6.00 pm on the last day of school term until 6.00 pm on the seventh day thereafter; and
(C)From 10.00 am on Boxing Day until 6.00 pm on New Year’s Day each year.
(b)While ever the father lives beyond a radius of 150 kilometres from the mother’s residence:
(i)Until Monday 28 September 2015, every third Saturday and Sunday, from 10.00 am until 4.00 pm each day, commencing on the first Saturday and Sunday following these orders;
(ii)Thereafter until Monday 28 December 2015, each third weekend from 10.00 am on Saturday until 4.00 pm on Sunday, commencing on the third Saturday after the last visit pursuant to Order 4(b)(i) hereof;
(iii)Thereafter until Monday 28 March 2016, each third weekend from 6.00 pm on Friday until 6.00 pm on Sunday, commencing on the third Friday after the last visit pursuant to Order 4(b)(ii) hereof;
(iv)Thereafter until the child commences school:
(A)
Each third weekend from 6.00 pm on Friday until
6.00 pm on Sunday, commencing on the third Friday after the last visit pursuant to Order 4(b)(iii) hereof; and
(B)For the first seven consecutive days of each school holiday period, commencing at 6.00 pm on the last day of school term until 6.00 pm on the seventh day thereafter; and
(v)After the child commences school:
(A)During school terms, each fourth weekend from 6.00 pm on Friday until 6.00 pm on Sunday, commencing on the first Friday of each school term;
(B)For the first seven days of the Autumn, Winter, and Spring school holidays, commencing at 6.00 pm on the last day of school term until 6.00 pm on the seventh day thereafter; and
(C)From 10.00 am on Boxing Day until 6.00 pm on the tenth day thereafter each year.
For the purpose of implementing Orders 3 and 4 hereof:
(a)The parties (or their nominees) shall exchange the child between them at the McDonalds Restaurant, C Town, NSW; and
(b)The father is restrained from causing or permitting the child to be taken beyond a radius of 50 kilometres from the mother’s home while the child spends time with him pursuant to Orders 4(a)(i), 4(a)(ii), 4(b)(i), and 4(b)(ii) hereof.
Unless otherwise agreed between the parties, Orders 4 and 5 hereof are suspended if the father fails to permit the child to spend time with him on three consecutive occasions.
Unless otherwise agreed, the parties shall take all reasonable steps to ensure that the child communicates privately by telephone with:
(a)The father each Wednesday at 6.00 pm, when the child is living with the mother, and for that purpose the father shall telephone the child on the telephone number provided to him by the mother, and the mother shall ensure that the child is able to receive the father’s calls on that number at that time.
(b)The mother each Wednesday at 6.00 pm, when the child is spending time with the father, and for that purpose the mother shall telephone the child on the telephone number provided to her by the father, and the father shall ensure that the child is able to receive the mother’s calls on that number at that time.
(c)The parent with whom the child is not then staying, on the child’s birthday at 6.00 pm, and for that purpose the parent with whom the child is not staying shall telephone the child on the telephone number provided by the other parent for that purpose, and the parent with whom the child is staying shall ensure that the child is able to receive the other parent’s calls on that number at that time.
Each party is restrained from denigrating the other in the presence or hearing of the child and from permitting the child to remain in the presence or hearing of another person denigrating the other.
Each party shall forthwith inform the other, and keep the other informed, in writing of their respective current residential address and mobile telephone number.
Pursuant to s 65DA(2) and s 62B of the Family Law Act, particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders, and details of assistance to comply with these orders are set out in the attached Fact Sheet, which forms part of these orders.
The Independent Children’s Lawyer is discharged upon the expiration of any applicable appeal period.
Any and all outstanding applications are dismissed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Plume & Nevin 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 NEWCASTLE |
FILE NUMBER: NCC 2209 of 2014
| Ms Plume |
Applicant
And
| Mr Nevin |
Respondent
And
| Independent Children’s Lawyer |
REASONS FOR JUDGMENT
Introduction
These proceedings concern the parenting arrangements for the three year old son of the applicant mother and respondent father.
Originally, the parties contested all aspects of the child’s care, but the father belatedly conceded the child should continue to live with the mother.
That left two essential issues to resolve: the manner in which parental responsibility for the child should be allocated and the arrangements under which the child should spend time with the father.
History
The parties met in 2009, began cohabitation in 2010, separated in 2012, but remained living in the same house until July 2014.
The child was born in 2011.
Until July 2014, the parties, the child, and the mother’s two older children from a former relationship lived together in a township on the periphery of suburban Newcastle.
In July 2014, the father took the child to D Town, NSW, where the paternal family lived. The trip was ostensibly to have the child consult with a paediatrician, but the father conceived the prospect they would not return. Within days of their arrival in D Town the father consulted mental health service providers for an assessment of his psychological health,[1] which he admitted in cross-examination he did in expectation that he could use the assessment report to support his intended application to the Court for orders vesting the child’s residence in him. He telephoned the mother shortly afterwards to tell her he was keeping the child in D Town.[2]
[1] Family Report, para 45
[2] Mother’s affidavit, para 39
The mother was displeased and commenced these proceedings by filing an application in the Federal Circuit Court in August 2014, seeking a recovery order and an interim order for the child to live with her.
Interim orders were made in October 2014 for the parties to have equal shared parental responsibility for the child and for the child to live with the mother. The father promptly returned the child to the mother the following day. No orders were then made for the child to spend time with the father, but the proceedings were adjourned until December 2014 when, no doubt, it was contemplated that issue would be given further consideration.
When the proceedings were re-considered by the Court in December 2014, the mother revealed her concerns about the child’s sexualised behaviour over preceding months, after his return to her by the father, and so the proceedings were transferred to this Court.
The mother filed a Notice of Child Abuse in December 2014, and an Amended Notice of Child Abuse in January 2015, in which she detailed her concerns about the child’s sexual abuse by the father and the risk of his subjection to sexual abuse and exposure to sexually improper conduct within the father’s household. By reason of those allegations, the proceedings were entered into the Court’s Magellan protocol and the trial was expedited.
Further interim orders were made in February 2015, providing for the child to live with the mother and to spend supervised time with the father each alternate Saturday. Those orders prevailed until the trial in June 2015.
The proposals
The mother pressed for the orders set out within her Amended Initiating Application, filed on 14 January 2015, subject to substitution of some of those orders with others specified in a minute of supplementary orders she tendered during final submissions.[3] In essence, she sought sole parental responsibility for the child, for the child to live with her, and for the child to spend time with the father on a slowly graduating regime. She also proposed that visits by the child with the father be supervised for a finite period of three years; the first year by an independent person, and thereafter by the paternal grandmother.
[3] Exhibit M6
The father abandoned the orders specified in his Amended Response, filed on 13 February 2015, and instead sought the orders set out in the minute of orders he tendered.[4] He sought the allocation of equal shared parental responsibility for the child, for the child to remain living with the mother, and for the child to spend periods of unsupervised time with him on a graduating basis that accelerated more quickly than the mother proposed.
[4] Exhibit F2
The Independent Children’s Lawyer revealed the orders he proposed at the commencement of final submissions, when he too tendered a minute of orders.[5] His proposal was broadly in line with the father’s proposal. The distinction between them, which related to the unsupervised time the children would spend with the father, was informed by the oral evidence given by the Family Consultant.
[5] Exhibit ICL2
The evidence
The mother relied upon her affidavit filed on 7 May 2015.
The father relied upon his affidavit filed on 1 June 2015.
The parties and the Independent Children’s Lawyer also relied upon:
(a)
The Magellan Report, dated 11 February 2015, furnished to the Court by the NSW Department of Family and Community Services
(“the Department”); and
(b)
The Family Report, dated 19 March 2015, which also annexed the Memorandum for the Court previously prepared by the
Family Consultant on 15 December 2014.
Legal principles
Orders in respect of children are regulated under Part VII of the Family Law Act1975 (Cth) (“the Act”). The Act defines the meaning of a “parenting order” (s 64B).
When invited to make a parenting order, the Court is enjoined to bear in mind both the objects of the legislation and the principles which underpin those objects (s 60B) in determining the nature of the parenting orders which ought properly be made (s 65D).
When making parenting orders the Court is mandated to regard the child’s best interests as the paramount consideration (ss 60CA, 65AA). The Act specifies with precision the criteria which the Court must contemplate in arriving at a conclusion as to what is in the best interests of the child (s 60CC).
The Court is required to apply a rebuttable presumption that a child’s best interests are served by an order allocating equal shared parental responsibility for the child to the parents (s 61DA). Parental responsibility is defined to encompass all duties, powers, responsibilities and authority conferred by law upon parents (s 61B). The legislation dictates the manner in which equal shared parental responsibility is to be exercised in respect of decisions relating to “major long-term issues” concerning the child (s 65DAC), being matters such as education, religion, culture, health, name, and changed living arrangements (s 4), and also in respect of decisions which do not relate to such significant issues (s 65DAE).
The presumption of equal shared parental responsibility does not apply in certain circumstances, including in instances of child abuse and family violence (s 61DA(2)), and the presumption may be rebutted if the Court is satisfied it would not be in the best interests of the child for the parents to have equal shared parental responsibility for the child (s 61DA(4)). The presumption says nothing about the amount of time the child should live or spend time with each parent, but the manner in which parental responsibility for the child is allocated by the Court may bear on that issue.
In the event an order is made allocating equal shared parental responsibility to the child’s parents, either presumptively or otherwise, the Court is then obliged to consider both the advisability and practicability of the child living for equal time with both parents, or alternatively, living primarily with one and spending substantial and significant time with the other (s 65DAA).
If parental responsibility for the child is allocated in some other way, then the Court’s discretion is at large in the determination of the parenting orders warranted, though the discretion must still be exercised in the context of the child’s best interests being the paramount consideration.
Best interests of child – primary considerations
Section 60CC(2)(a)
The child has a meaningful relationship with the mother. He will derive benefit from maintenance of that relationship. The father demonstrated his awareness of that fact by his conscious choice, shortly before the trial commenced, to abandon his residence application and to concede the child should remain resident with the mother.
Similarly, there is no doubt the child enjoys a meaningful relationship with the father, from which he does, and will continue to, derive benefit. The mother conceded so much in cross-examination. She admitted the child loved the father and that it was important for them to retain their relationship.
The mother’s concern, which has been manifest since she filed her Notices of Child Abuse in December 2014 and January 2015, is that the child is at risk of harm through his subjection or exposure to sexual abuse while in the father’s care. She considered his need for protection from that risk outweighed the need for him to maintain his meaningful relationship with the father. In effect, she emphasised the need to invoke s 60CC(2A) of the Act.
The concern raised about the child’s need for protection from harm was clearly the most significant controversy in the proceedings but, before passing to consider the evidence relevant to that asserted risk under s 60CC(2)(b) of the Act, it is worthwhile pausing to reflect upon the genuine depth of the child’s relationship with the father, which would almost certainly be impinged by the types of restrictions proposed by the mother.
It is uncontroversial that, while the parties lived in the same household, the father played a very significant role in the day-to-day care and supervision of the child. For a protracted period of time before the father and child vacated the family home in July 2014, the child slept each night in bed with the father. The parties then occupied separate bedrooms. The child slept with the father and the mother’s next youngest child (“E”) slept with her.[6] The father was solely responsible for the care and supervision of the child during the period they lived in D Town between July and October 2014. Self-evidently, the child formed a strong bond with the father over the first three years of his life. The mother had sufficient confidence in their bond that she consented to the father taking the child away alone to D Town for his paediatric appointment.
[6] Family Report, paras 26, 70, 79
When the Family Consultant observed the child in the company of the father in March 2015, the child initially appeared slightly anxious.[7] That was not, however, particularly surprising because the child had not seen the father since returning to the mother’s care in October 2014. His supervised visits with the father under the interim orders made in February 2015 did not start until after the observation session with the Family Consultant. The child was also most probably conscious of the trouble caused by his comments about the father to the mother. The mother had already told him she would call the police if the father came near them and the child began to worry about whether the father would “come and get [him]”.[8] However, within a short time of their re-introduction, the child and father were observed to interact warmly, which the child enjoyed.[9]
[7] Family Report, paras 81, 139
[8] Mother’s affidavit, paras 59, 64
[9] Family Report, paras 117, 118, 119
If the child’s derivation of benefit from his meaningful relationship with the father was to be subordinated to the need for his protection against harm, the evidence of the risk of harm posed to him by the father needed to be cogent. It was not.
Section 60CC(2)(b)
Happily, there was no evidence of any family violence in these proceedings.
The single issue for consideration under s 60CC(2)(b) of the Act was the asserted risk the child would suffer harm through his subjection or exposure to sexualised conduct while in the father’s care.
The mother’s concern about that asserted risk sprang from a combination of circumstances: what she saw the child do; what she heard the child say; and what she later learned about the father during the course of these proceedings.
Although the mother understandably conducted the case on the basis that the risk of the child’s harm was established by those facts and circumstances in aggregation, it is only possible to evaluate the reliability and weight of the evidence in segregation.
The mother’s observations of the child’s conduct in the weeks following his return to her from the father were really quite innocuous when analysed objectively.
During October 2014, the mother observed him lying on a bed “pulling on his penis” and to run out of a room naked.[10] On another occasion he was in the bath with her and she described her perception of his attempt to insert a bar of soap into his anus.[11]
[10] Mother’s affidavit, paras 48, 49
[11] Mother’s affidavit, para 50
When each of those events occurred, the child was barely three years of age. It could hardly be fairly regarded as suspicious for a boy of that age to pull on his penis and run around a house naked. The fact the child told the mother “that’s what daddy does” when asked why he was touching his penis does not imbue the act with sexual impropriety. The father conceded to the Family Consultant[12] and in cross-examination that he touched the child’s penis in the past while assisting him to bathe and when changing his nappies. Every parent does so with young sons. The father, not unnaturally, also conceded the child had seen him touch his own penis when he bathed and used the toilet. Such acts would entail the father actually manipulating his penis, not just touching it. Men undertake such tasks every day without the acts being sexualised.
[12] Family Report, para 126
As for the incident in the bath, the mother’s evidence in cross-examination cast considerable doubt over whether her perception of the event was factually accurate. At best, the child was standing in the bath, side-on to her, and she could only see the child place the bar of soap between the cleft of his buttocks. Her inference the child tried to insert the soap into his anus is difficult to accept, since its mass was comparatively enormous. The mother described the dimensions of the bar of soap by holding up her fingers, indicating dimensions of about 10 centimetres square. He had no chance of penetrating himself with such a large object and it is unlikely he even tried.
The father freely admitted he taught the child to wash his “bum”, so it would be unsurprising for the child to have done so himself in the mother’s presence by wiping the bar of soap between his buttocks. The mother said the child retorted “that’s what my daddy does”, which may be perfectly correct, but that does not debase an ordinary act of hygiene and convert it to one of sexual misconduct. Significantly, when the child was later interviewed by officers of the NSW Joint Investigation Response Team (“JIRT”), the child told them that, when bathing, the father had used the soap on the “outside”, not the “inside”, of his bottom.[13]
[13] Magellan Report, page 4; Family Report, para 130
For very good reason then, the mother conceded in cross-examination she was much more concerned about what the child said than what he did. Nothing about the child’s behaviour could reasonably vindicate concern about his subjection or exposure to sexual impropriety.
The child’s vulgar representations were, however, quite a different matter.
Over a period of months from October 2014 onwards, the mother heard the child say words to the following effect to her, to her other two children, and to the child’s maternal cousins:[14]
[14] Mother’s affidavit, paras 46, 47, 49, 52, 53, 54, 57, 58, 61, 63, 64, 65
(a)Let’s go in the bedroom and have sex.
(b)Dad makes me sleep so he can kiss the girls.
(c)Fuck, I need a root.
(d)Mummy, where’s your vibrator?
(e)I want to put my doodle in your mouth.
(f)Can I stick my dick up your bum?
(g)Do you want to have sex?
(h)Do you want to come in the bedroom and have sex?
(i)Dad makes me go to sleep so he can have sex and kiss girls.
(j)I want to have sex with you.
(k)Dad took his pants and undies off and kissed Mel. My Dad talks to people on the phone and says, I want to fuck you and suck my dick [sic].
(l)Dad had a root with Mel and he put his pants back on.
(m)My dad is disgusting. He plays with his doodle in bed.
(n)My Daddy made me touch his doodle and he touched mine.
(o)Daddy used to make me touch his doodle.
It may be stated clearly at the outset; such comments by a child only three years of age are extremely alarming. Such language must have been learned from the environment within which he lived. The child should not have been exposed to sexualised concepts or commentary in the way he obviously was, but the evidence disclosed that both parties were as much to blame for that.
The mother deposed,[15] and confirmed in cross-examination, the child did not display such behaviour or say such vulgar things before he went to live with the father in D Town in July 2014. However, that evidence was patently false, which the mother was forced to concede when confronted with text messages and emails she sent to the paternal grandparents on various occasions between December 2013 and July 2014 – which was while the parties and the child still lived in the same household. Even as early as that, before the child attained three years of age, he used such profanities as “fuck” and “cunt” in his conversation. The child’s behaviour was also so incorrigible the mother suggested she would have to “[throw] him to the Salvos” or “send [him] up to [the paternal grandparents]” for them to care for him, because she could barely face the ordeal of it any more.[16] Inferentially, at least initially, it must have been sweet relief for her when the father took the child alone to D Town.
[15] Mother’s affidavit, para 67
[16] Father’s affidavit, para 40, Annex C
The contrast the mother sought to establish in these proceedings between the child’s language and behaviour before he went to D Town with the father in July 2014 and his language and behaviour after he returned to her in October 2014 was a delusion. The distinction did not actually exist. His behaviour afterwards was much the same as it was before. Of course, the continuity of the child’s delinquent behaviour does not excuse it. Rather, the continuity served to prove the father was not exclusively at fault for it. The child learned and displayed such language and aberrant behaviour while the family was still intact.
The mother asserted the child must have learned such behaviour from the father, or other people in his home, but that was idle speculation. She could not know what occurs in the father’s home. Her imputations were entirely drawn from the child’s attribution of such profanity and behaviour to the father. It was unwise for her to draw that inference so readily. The child knew his comments were naughty, because the mother repeatedly told him so and she admonished him for speaking in such terms, to which he frequently responded by telling her that is what he heard the father say.[17] That could have been true, but it might also have been a convenient way for him to deflect blame to the father when he realised he faced the prospect of discipline from the mother, particularly when he must have known his parents were in conflict with one another.
[17] Mother’s affidavit, paras 46, 47, 49, 52, 53, 54, 58
There was plenty of other evidence of greater probative weight to prove the likely sources of the child’s profane language. The father gave unshaken evidence, which I accept, that the child was exposed to profanity used by him, the mother, E, the maternal aunt, and a maternal cousin.
The father said he and the mother frequently swore at one another in the past while the child was present. He admitted saying to the mother “shut the fuck up” when they argued. I also accept the father’s evidence that he and the mother attended an appointment with their general practitioner together in
June 2014, at which time they told the doctor the child swore like them. The doctor’s notes record “he swears like his parents”.[18]
[18] Family Report, para 80
The father said in cross-examination he heard the child use profane terms like “motherfucker”, “cunt”, and “fuckin’ dog” while the parties lived together. He alleged the child learned to use such language from E, who is about
30 months older than the child. The father said he attempted to discipline E and deter him from speaking that way, but E, who would have only then been five years of age himself, told him to “shut the fuck up”.
On the child’s return to live with the mother in October 2014, he and E began sharing a bedroom, so they did and still do spend plenty of time together. The father deposed[19] and confirmed in cross-examination that, while he and the child were speaking on the telephone, he overheard E in the background referring to him in disparaging terms like “arsehole”, “fuckwit”, and “cunt”, exhorting the child not to speak to him.
[19] Father’s affidavit, para 54
The father also alleged in cross-examination that the child’s maternal aunt and his young maternal cousin used profanity of that sort in the child’s presence. In particular, he alleged he heard the young cousin say things like:
(a)Suck my dick.
(b)Fuck you.
(c)Get fucked.
The father said the maternal uncle “slapped his arse” when the cousin said such things, but that method of discipline was not apparently a sufficient deterrent. The cousin continued to use such language and the child heard it. The child still associates with that cousin. The mother deposed how the child recently said to that cousin “you’re my best cousin. I want to have sex with you”.[20]
[20] Mother’s affidavit, para 61
The evidence overwhelmingly establishes the child has been, and remains, immersed in an environment of profanity and distorted parental instruction. The child’s use of words like “fuck”, “cunt”, “root”, and “vibrator” is more likely the product of his perpetual exposure to the conversation of others within his milieu – both adults and children – in which that language is habitually used, rather than suggestive of his observation of, or involvement in, sexual activity of which those terms are so graphically descriptive. I accept the father’s submission that, in all likelihood, the child has no understanding of the meaning or implications of what he was saying. In all but one respect, even the mother ultimately accepted that proposition.
The mother still maintained that some comments made by the child were more than merely profane expressions. Relevantly, the child effectively represented to the mother that:[21]
(a)He observed the father:
(i)Kiss girls;
(ii)Have sex with a person called Mel; and
(iii)Play with his [own] doodle [penis] while they were in bed together and also while he was in the toilet; and
(b)The father made him touch the father’s doodle [penis].
[21] Mother’s affidavit, paras 47, 58, 61, 63, 64
Those statements purported to be reports of what the child actually observed or did. They were not merely vulgar questions of others or proclamations of his intent, as were many of his other statements. The mother contended they were probably accurate and truthful accounts of what the child actually witnessed and did while in the care of the father. That could be so, but it would be bare speculation to so find – not an inference on the balance of probabilities.
If the father kissed females in the child’s presence it would, of itself, be quite unexceptional. Friends and relatives of opposite gender kiss one another on greeting and farewell all the time.
The father’s “play” with his own penis in bed could conceivably have been nothing more than him scratching or adjusting. His “play” with his penis in the toilet may have been nothing more than him extracting and returning his penis from and to his underwear. Such events need not have been acts of masturbation, which the mother presumably imputed.
The child’s constant exposure to the salacious conversations of other adults and children around him must have alerted him to the topic of “sex”, its taboo nature, and the titillation it caused when children used words associated with the topic. To say he observed the father, who was openly derided in and around the mother’s home, have “sex” with another person was not the momentous revelation it might have been within other families. When the child was later interviewed by JIRT staff he did not reveal any experience of being exposed to acts of intercourse between the father and others. The child also told them the father did not have any girlfriends – not even one called “Mel”.[22]
[22] Magellan Report, page 4
It would certainly have been quite improper for the father to have induced the child to touch the father’s penis, but the father stoutly denied it ever happened and his denial seemed credible. When interviewed by JIRT staff, the child did not reveal that the father made him touch, or even ever asked him to touch, the father’s penis. In fact, he was unable to provide any contextual detail at all, which led JIRT staff to decide no further action was required.[23]
[23] Magellan Report, page 4
The JIRT interview revealed the child “found it difficult to understand the difference [between] or comprehend truth and lies”.[24] It is impossible to be satisfied the child has any conception of the distinction between fact and imagination. The mother agreed in cross-examination that “every child lies” but, despite such a concession, she could not accept falsehood was a plausible explanation in this case. She said “I have to act on his behalf and believe what he says”. She was wrong. An insightful parent does not always believe what a child says, particularly one only three years of age. The comments of such young children must be regarded with some caution before being accepted as literally true.
[24] Magellan Report, page 4
The mother also conceded in cross-examination that it crossed her mind the child might have said such things for “shock value”, and it was ultimately admitted by her counsel that his vulgarity could have been “attention-seeking behaviour”. The mother should have given that possibility more considered thought. It seems more than just a possibility, given she conceded she heard the child ask E to have sex “at least 20 times” in one day.
One further aspect of the evidence requires mention for completeness. The mother made the report of sexual abuse to the Department in December 2014.[25] She reported, among other things, that “the father put his finger in [the child’s] anus”.[26] The mother gave no evidence of any such allegation by the child in her affidavit, although she raised it with the Family Consultant.[27] The mother kept a contemporaneous daily diary of the child’s statements and behaviour, which she used to compile her affidavit. She said in cross-examination if she did not make a record in her diary about an event, it was of no moment. She only recorded what was important. No explanation was ever given for why the Department and the Family Consultant were both told the father digitally penetrated the child’s anus when the mother adduced no evidence of it in reliance upon her diary notes.
[25] Mother’s affidavit, para 70
[26] Magellan Report, page 4
[27] Family Report, para 125
The evidence was insufficient to establish the father subjected the child to sexual abuse, which even the mother eventually conceded in final submissions. Nonetheless, she faintly maintained the child remained at unacceptable risk of harm through sexual abuse by the father, which submission hinged on the third aspect of the evidence she considered important: the extra information she gleaned about the father during the course of these proceedings. Having addressed the mother’s concern about what she saw the child do and what she heard the child say, it is therefore now necessary to address the mother’s residual concern about the father’s wider sexual proclivities.
During the course of the proceedings, the police answered a subpoena by producing documents which disclosed the father’s possible involvement in some sexualised events of which the mother was, apparently, previously unaware.[28]
[28] Family Report, para 74
In March 2009, a report was made to police alleging the father’s misconduct with members of a young woman’s family. The report was made by the young woman’s grandmother in circumstances of clear animosity between her family and the father. She wanted the father kept away from her granddaughter and her family, but was unprepared to make any statement of complaint against the father.[29] The young woman actually left her family and lived with the father for two months, but she made no personal complaint against the father until after they ceased living together and she returned to live with her family, at which time she alleged he “physically and sexually assaulted her”. The police found the young woman’s complaint to be inconsistent with her grandmother’s earlier complaint and she then declined to press her complaint.[30] The young woman was aged 16 years and the father was then aged 20 years. The father was never charged. He knew nothing of the complaint until it was raised with him by the Family Consultant and then again in cross-examination.
[29] Exhibit M2; Family Report, para 37
[30] Exhibit M5; Family Report, para 37
In January 2010, the father allegedly indecently assaulted a 13 year old girl. The father denied he did so. He contended he saved her from the river in which she had been swimming. The father was prosecuted, but the charge was dismissed on 29 September 2010.[31] The father’s acquittal means his presumption of innocence remains undisturbed, but it would not preclude a finding of fact in these civil proceedings that he probably acted in the manner alleged. The evidence would, however, need to satisfy the civil standard of proof, with due regard to the gravity of the allegation (s 140 Evidence Act 1995 (Cth)). The evidence adduced in these proceedings was not so strong.
[31] Exhibits M1, M3; Family Report, para 36
Significantly, the mother knew of the father’s charge and acquittal at the time, because she discussed that particular incident with the Family Consultant. She told the Family Consultant she “thought he did not do it”, but “there was a question mark in the back of her mind”. She even apparently “provided an affidavit in that matter”, which was presumably her account of the event, given on oath or affirmation, intended to corroborate the father’s innocence.[32] The whole affair certainly did not deter her from forming a de facto relationship and conceiving the child with the father during 2010. Logically, if she was unconcerned about the incident then, she should be unconcerned about it now. It would be duplicitous of her otherwise.
[32] Family Report, para 74
In April 2010, a woman reported to police she was sexually assaulted by the father some five months before in November 2009. The woman did not tell her friends or family of the alleged assault at the time. No explanation was given for the delayed complaint to police. She did not apparently later provide a formal statement to the police, as she initially said she would.[33] The father was never charged. As with the alleged incident in March 2009, the father knew nothing of the complaint until it was raised with him by the Family Consultant and then again in cross-examination.
[33] Exhibit M4; Family Report, para 40
The Family Consultant observed that the evidence of such past incidents had the potential to suggest various things about the father. It could be merely that he tends to engage in sexual behaviour with young women, or that he is assertive and unperceptive in his pursuit of sexual satisfaction, or that he is a sexual predator who targets vulnerable young women and children.[34] Sensibly, the Family Consultant did not purport to predict where the father might fall along that continuum.
[34] Family Report, paras 144-145
The mother impliedly asserted he falls closer to the dangerous end than the benign end of that spectrum, but the evidence did not support such a conclusion. Such fundamentally adverse findings against a party must be based on more than melodramatic reaction to unverified tales. The various complaints made by those young women were either not tested at all or, when tested, found wanting. The hearsay evidence of their uncorroborated complaints carries much less weight than the direct evidence given in these proceedings on oath or affirmation by the parties. The father may well have a voracious sexual appetite, but that does not coherently correlate with the mother’s submission that he poses a risk of sexual harm to the child. Heterosexual ardour, even if strong, has no logical connection to paedophilic tendency.
The father’s evidence in cross-examination established he conducts ribald electronic communication with women, including the use of graphic images, by use of his telephone. However, no evidence at all was adduced to support the mother’s former allegation to the Family Consultant that he conducted such communication with “underage girls”.[35] The undisputed evidence was the father’s telephone is locked by both PIN and fingerprint codes, so there is no prospect of the child’s exposure to it.
[35] Family Report, para 124, Annex A (page 2)
The mother’s criticism of the father’s interest in pornographic imagery was, at least to some extent, hypocritical anyway. She admitted to police that she and her former partner kept pornographic videos in their house, which were watched, presumably also by her, when the children were in bed. The allegation then under investigation by police was that the mother’s former partner forced their eldest child to watch a pornographic video.[36] The complaint was not pursued and, notwithstanding, the mother admitted she still has a perfectly amiable relationship with her former partner.[37]
[36] Exhibit F1; Family Report, para 73
[37] Family Report, para 64
I accept the submissions made by the father and Independent Children’s Lawyer to the effect that, even in aggregation, the evidence did not establish that the child was at risk of either physical or psychological harm through his sexual abuse or his involvement in some form of sexual impropriety by the father. The mother may still genuinely harbour fear of such risk, as she told the Family Consultant[38] and said in cross-examination, but the evidence does not reasonably bear out her fear. It might be, as the father contended, the mother’s perception is coloured by her own experiences as a child,[39] but that is merely conjecture and it is unnecessary to decide.
[38] Family Report, para 75
[39] Family Report, para 63
Best interests of child – additional considerations
The father alleged the mother allowed the child to drink alcohol.[40] Although the mother denied the allegation,[41] she admitted she sent a photograph to the paternal grandparents depicting the child drinking bourbon, accompanied by captions suggesting he enjoyed it. She passed it off as a joke. Why she would even do so even as a joke defies rational explanation because it is common ground she gave the father an ultimatum that if he did not cease excessive use of alcohol (and illicit drugs) she would terminate their relationship.[42] She must therefore realise the destructive potential of alcohol.
[40] Family Report, paras 24, 135
[41] Family Report, para 68
[42] Family Report, paras 31, 66
The imprudence of such behaviour, even if only in attempted jest, requires no elaboration, but such foolishness has no influence on the outcome of the case because the parties agreed the child should remain living with the mother.
There is another aspect of the evidence that impinges the mother’s parenting capacity. Although little can be done about it either, because the child will continue living with her, it cannot pass without censure.
When the child was interviewed by JIRT staff in January 2015 in relation to the allegations of sexual abuse, he referred to the father as “shithead” and told the staff he did not know the father by any other name,[43] although he actually also did refer to the father by the alternate name of “fuckwit”.[44] The mother said in cross-examination the child always called the father “Dad” or “Daddy” before they went to D Town in July 2014. The mother denied, both to the Family Consultant[45] and during cross-examination, that the father is now called those derogatory names by the child or any other person in her household.
[43] Magellan Report, page 4; Family Report, paras 130, 131
[44] Family Report, paras 72, 132
[45] Family Report, para 72, 136
I reject her evidence in that respect as untruthful. There could be no logical account for why a three year old child would adopt such disparaging names for a loved parent other than that he was coached by some other person to do so. Most probably it was the mother or one of her other two children, in which case she deliberately abstained from their correction. I reject as implausible the mother’s theory that the child learned such names for the father from the paternal grandfather or any other member of the paternal family.
The mother sought to take advantage of the father’s past unstable mental health. The father did apparently suffer some “mental health issues” in the period between 2010 and 2013,[46] but the evidence was quite vague. At that time, a treating psychiatrist opined there was no current evidence of “a current psychotic condition, or any distinct negative or cognitive symptoms of a chronic psychotic disorder”.[47] However, the father still felt the need to obtain a psychiatric assessment in July 2014 verifying his fitness,[48] so inferentially he must have considered the need to remove any doubt that arose from his past history. In any event, as the Family Consultant concluded, his mental health is presently stable and he is being weaned off medication.[49]
[46] Family Report, para 141
[47] Family Report, paras 50-53
[48] Family Report, paras 45, 50
[49] Family Report, para 141
Lest it not otherwise be obvious, the parties lived together during the years between 2010 and 2013 when the father did experience some psychological disturbance. It did not seemingly concern the mother then. It did not trouble her allowing the father to take the child alone to D Town in July 2014. It could not be a genuine issue of concern to her now.
The mother continues to live near Newcastle and the father continues to live in D Town. Their households are about 500 kilometres apart and the road journey between them takes about 6-7 hours.[50] That imposes a considerable impediment upon the child’s future interaction with the father. The amount of time the child may spend with the father, and the frequency of their visits, must be informed by the vast distance between their homes. At least both parties own cars and are licensed to drive, though they each experience difficult financial circumstances.
[50] Family Report, para 11
The father raised, both with the Family Consultant[51] and during cross-examination, the prospect of him moving his residence to F Town on the NSW mid-north coast, but that remains only a formative idea. The idea has not yet progressed to an intention. However, if the father did pursue that idea, his residence would then be within a comfortable two hours road journey from the mother’s home and his interaction with the child could feasibly be more regular, for which the orders should cater.
[51] Family Report, para 34
Conclusions and orders
The presumption of equal shared parental responsibility is not rendered inapplicable for any reason prescribed by s 61DA(2) of the Act.
The mother contended the presumption was rebutted under s 61DA(4) of the Act, because the evidence established it would not be in the best interests of the child for the parties to have equal shared parental responsibility. Her rationale was that the level of communication between them was too poor to enable constructive dialogue between them.
For reasons advanced by the father and Independent Children’s Lawyer, the presumption was not successfully rebutted by the evidence. True it is, the communication between the parties is poor, but it need not be. The only apparent reason for the deterioration in their parental relationship is the dispute over the risk of the child’s sufferance of harm by exposure to sexual abuse or impropriety, the evidence in relation to which proved unconvincing. The mother may still genuinely believe in the existence of the risk, but she should be comforted by the father’s evidence to the effect he would have been similarly concerned if he had heard the child make the sexual comments he made to her. He did not criticise the mother. He admitted he would have acted just as she did. The father’s concessions must have all but extinguished the fire of animosity between them.
It needs to be remembered the parties actually separated in 2012. For another two years thereafter, until July 2014, they maintained a common residence and continued their conjoint care of the child. They could not have done so unless they had a healthy degree of respect for and confidence in one another. Right up until July 2014, they conferred and made joint decisions about the child’s welfare. As an example, they decided he needed to be medically assessed and they jointly attended upon their general practitioner and procured a referral for the child to a paediatrician. They decided the father should take the child to the paediatric appointment in D Town while the mother remained at home to care for her other two children. The rupture of the parties’ trust resulted from the father’s devious decision to remain living in D Town and retain the child in his care, which distrust was compounded by the child’s revelations to the mother when he returned to her care three months later.
The father has since attempted to re-establish effective communication with the mother, but she admitted to the Family Consultant she rebuffs him.[52] The only reason for her obstinacy is her inability or unwillingness to accept the evidence does not establish the father poses any real risk of harm to the child. However, that is not a genuine impediment to their future communication anyway, for reasons revealed by the mother herself. She proposed an order be made which compelled her to notify the father of certain important events in the child’s life.[53] She could only comply with such an order by communicating with him, even if it only be by letter, email, or text message. If the mother foresaw the necessity of her limited communication with the father about the child after she made decisions regarding his welfare, there was no logical reason why she could not communicate with the father before such decisions were made.
[52] Family Report, para 75
[53] Amended Application filed 14/1/15, Order 9
That is not to say their communication may not be strained for a while. It probably will be. It may even be better for them to confine their communication to writing until the tension over this litigation subsides. However, “major long-term issues” (s 4) in the child’s life, requiring their consultation and bona fide effort to compromise (s 65DAC), will not arise all that often. In time, they will likely re-capture some of the goodwill which previously characterised their parental relationship.
The evidence was insufficiently strong to rebut the presumption of equal shared parental responsibility, which will therefore be presumptively conferred upon the parties. Such a conclusion also enjoyed the support of the Family Consultant.[54]
[54] Family Report, para 150
In such circumstances, s 65DAA of the Act is engaged and it is obligatory to consider certain residential alternatives for the child: preferably, the child living with the parties for “equal time”, or alternatively, the child living primarily with one and spending “substantial and significant time” with the other.
The father conceded neither of those alternatives is reasonably practicable, which renders it pointless considering whether either alternative would be in the child’s best interests. The father expects the child to continue living with the mother and he lives too far away from them to permit the child to spend substantial and significant time with him. Even if he moves from D Town to F Town, visits that amount to “substantial and significant time” would barely be possible.
The Family Consultant recommended that (assuming the father does not pose any risk of harm to the child; which is the finding made) the child should spend “regular time” with the father, taking into account his age and the distance between them.[55] Neither party, nor the Independent Children’s Lawyer, attempted to dissuade the Family Consultant from that view, which I therefore adopt as a sensible approach.
[55] Family Report, para 151
The dispute between the parties and Independent Children’s Lawyer then collapsed into intricate argument about the length of the period over which the child’s re-introduction to the father should occur and the desirable rate at which the graduation should accelerate. Unfortunately, the intricacy of the debate lost touch with the reality of the parties’ circumstances. No particular proposal had any more or less support from the Family Consultant’s evidence.
The fundamental guidance given by the Family Consultant, which I accept, was generally that:
(a)The time spent by the child with the father would have to build up;
(b)It would not be developmentally appropriate for the child, now or in the near future, to simply spend week-long visits with the father once every few months;
(c)The child’s visits to the father should desirably be more frequent and of shorter duration over the next few months; and
(d)Overnight stays could be introduced within the next few months, but multiple overnight stays should be introduced progressively.
Of course, as desirable as a program of that sort may be, the geographical separation of the parties and their tight financial circumstances need to be factored into consideration. The Family Consultant expressly acknowledged that to be so. The orders synthesise those considerations, though not exactly in accordance with any of the proposals finally made by the parties and Independent Children’s Lawyer.
The child presently attends day-care on Wednesdays and Thursdays each week,[56] and given he will attain five years of age in July 2016, it is likely he will commence school in 2017. The child’s visits with the father should be structured around those educational commitments.
[56] Family Report, para 78
The orders are also structured to take account of the possible relocation of the father’s residence to a place closer to the mother. An arbitrary radius of
150 kilometres is adopted. If the parties’ households remain beyond that distance it would be impracticable for the child to spend as much time with the father as he could if the households were closer.
The father only recently secured some employment, but it seems it is only casual. He said he could take time off work any time he wanted to ensure the viability of his visits with the child.
The orders require the father to remain with the child in reasonably close proximity to the mother’s home during the child’s visits with him over the next six months. The duration of the visits over that period is too short for the child to be taken all the way back to the father’s home before being returned to the mother’s home. That restriction will not be unduly oppressive upon the father, as the paternal great grandfather lives in the G Town district and the father is welcome to use his home as a base in this area.
The mother maintained her proposal for the child to be supervised while with the father, but in final submissions she relaxed her proposal from permanent supervision to finite supervision for a period of three years. Her revised position, however, betrayed the intended purpose of such supervision. It was not for the benefit of the child; it was for her benefit. If the father really did pose a risk of harm to the child by reason of his sexual proclivities, as she contended he did, that risk would not magically dissipate within three years. He would remain the sexual deviant she asserted him to be. Supervision could not therefore be for the purpose of his protection from any such harm posed by the father, as that risk would not abate. There was no other reason for it, but for the mother’s need for re-assurance. The three year period was entirely arbitrary.
The mother’s need for re-assurance is not a good enough reason for supervision, at least in the circumstances of this case. It is well-recognised that the imposition of long-term supervision is generally undesirable (see Moose v Moose (2008) FLC 93-375 at [119]; H & K [2001] FamCA 687 at [40]-[41]; Marriage of Bieganski (1993) 16 Fam LR 353 at 368). Supervision would likely impinge upon the quality of the child’s important relationship with the father. The mother’s unnecessary need to be comforted is not sufficient reason to risk damage to the child’s relationship with the father. The evidence got nowhere near establishing that the mother’s parenting capacity would disintegrate, with consequent detriment to the child, if she was denied the comfort of his supervision (see Marriage of Sedgley (1995) 19 Fam LR 363 at 371; Re Andrew (1996) 20 Fam LR 538 at 544-546; Hepburn & Noble (2010) FLC 93-438 at [43], [49]-[64]).
The mother proposed that the paternal grandmother be the designated supervisor for the last two of the three year period, but that proposal was also misguided because the paternal grandmother stoutly refutes the veracity of the sexual abuse allegations made against the father.[57] She may not closely supervise the child with the father, even if appointed by order to do so, because she does not believe there is any need for it.
[57] Family Report, para 99
Although the mother said she would be unhappy about complying with Court orders with which she disagreed, she also clearly said she would regard herself as bound by the orders and would comply with them. I see no reason to disbelieve the mother. If her evidence was untruthful, further litigation would likely follow any contravention of the orders by her and, in order for the child to retain his relationships with both parents, the mother would then face the risk of the child being removed from her primary care.
The Family Consultant confirmed the child was at risk of emotional damage if the father failed to diligently adhere to the regime of visits imposed by the orders. She agreed with the mother’s proposal for the insertion of a self-executing provision in the orders suspending visits between the child and father if he failed to commit to regular and consistent compliance. The orders operate to suspend their visits if the father misses three consecutive visits. In final submissions, the mother accepted the efficacy of such an order in preference to her proposal for the suspension to operate upon three failed visits in any one calendar year.[58]
[58] Exhibit M6, Order 10
The parties eventually agreed they could exchange the child at a public venue on the outskirts of Newcastle. The orders adopt that venue for changeovers.
The orders make provision for telephone communication between the child and the parties only once each week. That coincides with the mother’s proposal,[59] rather than the father’s proposal.[60] In view of the past problems experienced with telephone communication, to which both parties attested, once per week is enough. More calls would increase the chance of conflict. The child needs no more than one call each week.
[59] Amended Application filed 14/1/15, Order 5
[60] Exhibit F2, Orders 3(f), 3(j)
The remaining orders could not be the subject of sensible opposition.
I reject the Independent Children’s Lawyer’s proposal for an order pursuant to
s 65LA of the Act compelling the parties to attend post-separation parenting programs.[61] He asked the Family Consultant about it, but she was far from convinced the parties would glean any real benefit.
[61] Exhibit ICL2, Order 10.2
I certify that the preceding one hundred and ten (110) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 23 June 2015.
Associate:
Date: 23 June 2015
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