Purdy and Easton and Anor
[2017] FamCA 239
•19 April 2017
FAMILY COURT OF AUSTRALIA
| PURDY & EASTON AND ANOR | [2017] FamCA 239 |
| FAMILY LAW – CHILDREN –Reasons for decision – Best interests of the children – Where both children have special needs – Where the mother has an intellectual disability – Where the first respondent father has allegedly sexual abused his step daughter – Where the second respondent father has been convicted of sexual offences against a minor – Where the second respondent father has Asperger’s Syndrome – Where there are concerns regarding the parenting capacity of each parent – Where the first respondent father has disengaged from proceedings – Where the mother and second respondent father agree as to the orders – Where the mother has sought and is receiving professional assistance in caring for the children – Where the parenting capacity of the mother is adequate – Where the parenting capacity of the second respondent father is adequate – Where the first respondent father poses an unacceptable risk of sexual harm to the children – Consent orders made – The first respondent father to spend no time with the children – The second respondent father to spend time with the children as agreed. |
| Evidence Act 1995 (Cth) s 140 Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61C, 61DA, 65DAA, 69ZN Family Law Rules 2004 (Cth) r 16.07 |
| Deiter & Deiter [2011] FamCAFC 82 |
| APPLICANT: | Ms Purdy |
| FIRST RESPONDENT: | Mr Easton |
| SECOND RESPONDENT: | Mr Riley |
| INDEPENDENT CHILDREN’S LAWYER: | Mr Samuel |
| FILE NUMBER: | PAC | 5515 | of | 2014 |
| DATE DELIVERED: | 19 April 2017 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Hannam J |
| HEARING DATE: | 13 December 2016 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | Claremont Legal |
| THE FIRST RESPONDENT: | No Appearance |
| COUNSEL FOR THE SECOND RESPONDENT: | Mr Daniel |
| SOLICITOR FOR THE SECOND RESPONDENT: | Ramsland Laidler Solicitor |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Brian Samuel and Associates |
Orders
1) By consent of the mother and the Second Respondent father and in the absence of the First Respondent Father, orders are made in terms of paragraphs 1 to 11 of Exhibit A with the following variation in order 11 the words “ensure that she receive” are deleted and substituted with the words “seek the”. Orders 1 to 11 of Exhibit A being:
B
1.The mother have sole parental responsibility in respect to all issues relating to the child [B] born … 2007.
2.That [B] live with the mother.
3.That the first respondent father namely [Mr Easton] spend no time with nor communicate with [B].
C
4.That the mother and second Respondent father, namely [Mr Riley] have equal shared parental responsibility in respect to all issues relating to the child [C] born … 2000.
5.That the child [C] live with the mother.
6.That the child [C] spend no time with or communicate with the first Respondent namely [Mr Easton].
7.That the second Respondent father namely [Mr Riley] spend time and communicate with the child [C] by agreement with the mother.
Additional Orders sought by the Independent Children’s Lawyer
8.That neither party (applicant mother and second respondent father) denigrate the other within the presence or hearing of either child or permit or authorise any third party to do so.
9.That the mother do all things necessary to ensure that the child [C] have ongoing psychological support throughout her childhood.
10.That the mother do all things necessary to ensure that she continue to receive support from the [D Group].
11.That the mother do all things necessary and sign all documents required to seek the ongoing support from and through the National Disability Insurance Scheme or such other equivalent scheme or service implemented by the Commonwealth Government from time to time.
2) By consent of the mother and the Second Respondent father and in the absence of the First Respondent Father, the Independent Children’s Lawyer is to remain engaged in the proceedings for 12 months of the date of these orders.
THE COURT NOTES
A. The Independent Children’s Lawyer intends to provide further information from Dr E in respect of his recommendations and in particular services which may assist the mother in the management of her children especially B.
THE COURT ORDERS
3) The mother shall do all things requested of her in relation to participation in programs and accessing services as requested by Independent Children’s Lawyer in accordance with Dr E’s recommendations.
4) The mother is to provide authority to F Respite and the National Disability Insurance Scheme for the Independent Children’s Lawyer to communicate with those agencies and obtain information from them with respect to the children subject to these proceedings and this order provides authority to F Respite and the Nation Disability Insurance Scheme to provide such information to the Independent Children’s Lawyer.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Purdy & Easton and Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT PARRAMATTA |
FILE NUMBER: PAC 5515 of 2014
| Ms Purdy |
Applicant
And
| Mr Easton |
First Respondent
And
Mr Riley
Second Respondent
REASONS FOR JUDGMENT
Introduction
This matter concerns the long term parenting arrangements in respect of 17 year old C and 10 year old B. C is the daughter of Ms Purdy, the applicant mother (“the mother”) and Mr Riley, the second respondent father. B is the son of the mother and Mr Easton, the first respondent father.
The mother commenced a relationship with the Mr Riley in 1999. The relationship ended the same year when the mother was two months pregnant with her eldest child.
The mother commenced a relationship with Mr Easton in 2004. They married and began living together in 2006. The mother and Mr Easton separated in May 2013 when the mother and children moved out of the family home following allegations of sexual abuse made by C against Mr Easton. These allegations were subsequently substantiated.
The mother subsequently commenced proceedings for parenting orders in relation to both children. On 13 December 2016 no appearance was made by or on behalf of Mr Easton. At final hearing on that date orders were made by consent of the mother and Mr Riley which can be summarised as follows:
· The mother have sole parental responsibility for B.
· The mother and Mr Riley have equal shared parental responsibility for C.
· Both children live with the mother.
· Mr Easton spend no time with and not communicate with either child.
· Mr Riley spend time with and communicate with C by agreement with the mother.
· Neither party denigrate the other within the presence or hearing of either child or permit any third party to do so.
· The mother do all things necessary to ensure that C have ongoing psychological support.
· The mother do all things necessary to ensure she continues to receive support from a nominated family support service and through the National Disability Insurance scheme or other such equivalent scheme.
· That the ICL remain engaged in the proceedings for 12 months and receive information from those agencies providing services to the children.
This judgment comprises my reasons for making those orders.
Mr Easton’s non-attendance
The mother commenced proceedings by way of Initiating Application filed 17 November 2014.
On 28 November 2014 the proceedings were allocated to the Magellan Protocol.[1]
[1] The Magellan program is a fast–track Case Management program in the Family Court that deals with serious allegations of physical and sexual child abuse.
Following the release of the Magellan Report[2] the parties appeared before a Registrar on 12 February 2015 and Mr Easton was ordered to file a Response to the mother’s Initiating Application.
[2] The Magellan Report is provided by NSW Department of Family and Community Services (‘Community Services’) and sets out the involvement of Community Services with the family.
Neither Mr Easton nor Mr Riley filed any Response until 2 October 2015.
In his Response filed 2 October 2015 Mr Easton sought final orders that B live with his mother, that the mother have sole parental responsibility for B and that he spend two hours supervised time with B each alternate Sunday. Mr Easton was not seeking any interim orders in regards to his son B.
In his Response filed 9 October 2015 Mr Riley sought orders that he and the mother have equal shared parental responsibility for C, that C live with the mother, that he spend time with C as agreed and that Mr Easton spend no time with C.
On 24 November 2015 all parties consented to orders for a Single Expert to be appointed. The mother, children and Mr Riley attended as required for assessment interviews with the Expert. Mr Easton did not make himself available for assessment.
On 2 June 2016 the Single Expert Report was released to the parties.
On 16 August 2016 there was no appearance by or on behalf of Mr Easton and the Court noted that the final hearing was expected to be heard on an undefended basis with respect to him. Trial directions were made on that date.
Mr Easton did not file any material in compliance with the trial directions.
On 13 December 2016 there was no appearance by or on behalf of Mr Easton and the participating parties sought that the Court deal with the matter to finality in his absence.
Rule 16.07 of the Family Law Rules 2004 (Cth) (“the Rules) provides that:
(1) Each party to an application set down for hearing on the first day before the Judge must attend in person and, if legally represented, with their legal representatives.
Note: The court may dispense with compliance with a rule (see rule 1.12).
(2) If a party does not attend on the first day before the Judge, the other party may seek the orders sought in that party's application by, if necessary, adducing evidence to establish an entitlement to those orders in a manner ordered by the court.
Having regard to the considerations in respect of adjourning parenting proceedings, which were considered by the Full Court in Jarrah & Fadel[3], and to the principles for the conduct of child-related proceedings[4], in my view, it was in the best interests of the children for the proceedings to be finalised and dealt with in the absence of Mr Easton . Mr Easton has been given the opportunity to participate but has disengaged from these proceedings.
[3] [2014] FamCAFC 14
[4] Set out in s 69ZN of the Family Law Act 1975 (Cth).
Background
The mother, who is 49, and Mr Riley, who is 45, met and began a relationship in 1999. The parties separated when the mother was two months pregnant with the child C.
C was born in 2000. For some years after she was born C spent irregular time with her father Mr Riley.
In 2004 C was diagnosed with Motor Dyspraxia, a condition that impedes social skills and physical movement.
The mother began a relationship with Mr Easton who is currently 47 in 2004. The mother and Mr Easton began living together following their marriage in 2006.
In 2007 the mother’s child with Mr Easton, B, was born.
In 2007 Mr Riley was charged with offences relating to sexual conduct with a minor. The offence arose from Mr Riley meeting a 15 year old girl online and organising to meet her in person. At that meeting the two had sexual intercourse. At the time Mr Riley, who was 35, was aware the girl was 15.
In November 2008 Mr Riley pleaded guilty to having sexual intercourse with a person over 14 and under 16 years and to use of the internet to groom a person under 16 years for sexual activity. The mother was not aware of the offences or criminal proceedings against Mr Riley.
In Mr Riley’s February 2009 Pre –Sentence Assessment Report a clinical psychologist recorded that Mr Riley admitted to sexual intercourse with a 15 year old girl but denied grooming her. The report also indicated that Mr Riley showed “an appropriate level of guilt and remorse about the offence” and good insight.
In February 2009 Mr Riley was diagnosed with Asperger’s Syndrome and was assessed as likely to have a long pattern of unstable interpersonal relationships because of this.
On 16 October 2009 Mr Riley was sentenced to a two year prison sentence which was suspended. The mother, who was unaware of the offences, continued to facilitate Mr Riley spending time with C.
It had been observed that B was developmentally delayed and in 2009 when the child was two he was diagnosed with Global Developmental Delay, a condition that describes an individual being delayed in reaching developmental milestones.
On 27 February 2012 Community Services received a Risk of Significant Harm (‘ROSH’) Report outlining concerns that C was spending time with Mr Riley who had been convicted in relation to sexual offences with a minor. The Magellan Report dated 30 December 2014 indicates that this matter was closed without assessment.
In May 2013 C who was 13 made a complaint to her mother of vaginal soreness. Investigations and tests carried out through a sexual health service indicated that C had [genital] herpes. At this stage C also disclosed that Mr Easton had touched her and an investigation was commenced by the Joint Investigative Response Team[5] (JIRT).
[5] The Joint Investigation and Response Team, made up of officers from police and Community Services investigates allegations of serious child abuse.
At this time the mother moved herself and the children out of the home shared with Mr Easton.
C was interviewed by Suburb G JIRT on two occasions but made no disclosures on either occasion. C did disclose to her maternal grandmother that Mr Easton “tried to make [C] s-u-c-k his dick”.
JIRT substantiated the matter, that is JIRT found that the allegations were proved, and an apprehended violence order (AVO) was obtained for the protection of C against Mr Easton. A safety plan was also put in place for the children to live with their maternal grandparents.
Mr Easton denied any sexual abuse of C when interviewed by police however medical test results showed that he was positive for type 1 [genital] Herpes.
On 5 June 2013 C further disclosed that Mr Easton had touched her vagina and she was referred to a sexual assault counselling service. The AVO protecting C was still in place and the mother was deemed by Community Services to be acting protectively so the matter was closed.
On 29 April 2014 a further report was made to Community Services that C had disclosed that Mr Easton had had sex with her. C disclosed to Suburb G JIRT who interviewed her for a second time that sex meant putting a penis in a vagina and Mr Easton had had sex with her in his and her mother’s bedroom on multiple occasions. JIRT substantiated the allegations of sexual abuse of C by Mr Easton.
According to the Magellan Report no other legal action was taken against Mr Easton as the AVO was in place protecting C and it was determined that C was not in need of care and protection.
Seven months later in November 2014 the mother commenced these proceedings which were allocated to the Magellan protocol.
Following the release of the Magellan report the parties appeared before a Registrar in February 2015 and Mr Easton gave an undertaking not to contact either child.
In August 2015 the mother became aware of Mr Riley’s conviction for sexual assault of a minor. The mother deposes that her then solicitors advised her that Mr Riley’s conviction had come to light in the Magellan Report and shortly afterwards she was contacted by Mr Riley who explained that the offence related to a “consensual” sexual experience with a 15 year old girl.
The mother deposes that Mr Riley told her that government agencies such as the New South Wales Probation Service and the Department of Family and Community Services had encouraged him to have contact with C. Given this, in addition to the fact that the mother had witnessed no concerning behaviour during Mr Riley’s time with C, the mother continued to facilitate C’s time with Mr Riley.
On 11 August 2015, the first time the matter had been before a judge since the release of the Magellan Report, Mr Riley’s conviction was brought to the attention of the Court as was the fact that the mother had been facilitating C spending time with Mr Riley. On this date orders were made for the mother to ensure C did not come into contact with Mr Riley and the documents pertaining to Mr Riley’s conviction were ordered to be obtained.
On 10 February 2016 after matters relating to Mr Riley’s conviction had been further considered by the ICL and the Court, orders were made by consent of the mother and Mr Riley for Mr Riley to spend time with C supervised by the maternal grandmother.
Risk of sexual abuse
Mr Riley has been convicted of having sexual intercourse with a minor in the recent past and Mr Easton has been accused of sexually abusing his step-daughter C. The behaviour of both Mr Easton and Mr Riley raises the question of the risk of sexual harm each poses to each child.
In M v M[6] the High Court said when discussing allegations of sexual abuse at [23] – [25]:
No doubt there will be some cases in which the court is able to come to a positive finding that the allegation is well-founded. In all but the most extraordinary cases, that finding will have a decisive impact on the order to be made respecting custody and access. There will be cases also in which the court has no hesitation in rejecting the allegation as groundless….
In resolving the wider issue the court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assessing the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child's welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access. In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access….
In devising these tests the courts have endeavoured, in their efforts to protect the child's paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.
[6] (1988) 166 CLR 69; [1988] HCA 68.
In M v M (supra), the High Court also said at [18]:
In considering an allegation of sexual abuse, the Court should not make a positive finding that the allegation is true unless the Court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v Briginshaw (1938) 60 CLR 336 at 362.
In Johnson & Page[7] the Full Court agreed that reference to the Evidence Act1995 (Cth) rather than Briginshaw is the appropriate standard, particularly having regard to s 140(2)(c) of that Act.
[7] [2007] FamCA 1235 at [72].
I also have regard to the authorities concerning the inter-relationship between being satisfied that alleged harmful acts occurred, and a finding of unacceptable risk. One of the cases reviewed in Johnson & Page (supra) at [65] is W & W (Abuse Allegations: Unacceptable Risk)[8], where the Full Court noted at [111]:
We accept as a matter of practice, a trial judge will almost inevitably be required in a case where sexual abuse allegations are raised to consider whether abuse has been proven on the balance of probabilities as well as considering whether or not an unacceptable risk of abuse exists.
[8] (2005) FLC 93–235.
In this matter I am easily satisfied as to the commission of a sexual offence by Mr Riley against a minor on the basis of his conviction for that offence in 2008.
The question arises however whether I am satisfied that the allegation that Mr Easton has sexually abused C is proven on the balance of probabilities, taking into account the matters set out in s 140(2) of the Evidence Act 1995(Cth).
Following her initial complaint to her mother of a sore vagina a series of sexual abuse allegations against Mr Easton have been made by C over a period of two years.
C made a clear and specific disclosure of sexual assault by Mr Easton in her second interview with JIRT. On both occasions JIRT substantiated the allegations of sexual abuse of C by Mr Easton.
Further, both C and Mr Easton tested positive for the same type of Herpes following C’s initial disclosures of sexual abuse.
However, C does have some intellectual disability and did not make any disclosures to JIRT when first interviewed. The complaint said to have been made to her grandmother is hearsay and has not been tested under cross-examination.
Although it is by no means determinative, Mr Easton was not charged. Although he does not give any account of the events, Community Services records indicate he has always denied the alleged conduct.
Given these circumstances, I cannot make a positive finding that Mr Easton did sexually abuse C. However, I also cannot make a finding that the sexual abuse did not occur and the issue of unacceptable risk posed by Mr Easton is considered later in these Reasons.
The Law & Discussion
The objects of Part VII of the Family Law Act 1975 (Cth) (“the Act”) and the principles underlying it set out in s 60B, form the framework for the part of the Act dealing with parenting.
The objects are to ensure that the best interests of children are met by:-
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
According to s 60CA of the Act, in deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of a child as the paramount consideration.
Section 60CC sets out the primary considerations and additional considerations to be considered by a Court in determining what is in a child’s best interests.
Primary considerations: s 60CC(2)
The primary considerations (under s 60CC(2)) are:-
a)The benefit to the child of having a meaningful relationship with both of the child’s parents; and
b)The need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence.
I am required to give greater weight to the need to protect the children from harm than to the benefit to the children of having a meaningful relationship with both parents.
Benefit to the children in having a meaningful relationship with both parents
The meaning of the phrase “meaningful relationship” is not defined in the Act. The Full Court in McCall & Clark[9] has approved the interpretation of the phrase by Brown J in Mazorski & Albright[10] and has also agreed with the reasoning of Bennett J in G & C[11]. Brown J in Mazorski & Albright (supra) said at [26], after setting out the definition of “meaningful” and “meaning”:
What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”.
[9] (2009) FLC 93-405; 41 Fam LR 483; [2009] FamCAFC 92
[10] (2007) Fam LR 518
[11] [2006] FamCA 994
The authorities have not interpreted this section to create a presumption that children do receive a benefit from having a meaningful relationship with both parents. Rather the focus of the enquiry is the extent to which the children receive a benefit from such a relationship.
The Full Court said in McCall & Clark (supra) at [117]:
Bennett J discussed the terminology in G & C [2006] FamCA 994 and said the enquiry was a “prospective” one which requires a court to evaluate the extent to which a meaningful or significant relationship with both parents is going to be of advantage a child (sic).
The Full Court continued at [122]:
No doubt in the majority of cases there will be a positive benefit to a child of having a significant relationship with both parents, but there will also be some cases where there will be no positive benefit to be derived by a child by a court attempting to craft orders to foster a relationship with one parent if this would not be in the child’s best interests.
The order made as proposed by the ICL and agreed to by the mother and Mr Riley provide for the children to live with the mother and for C to spend time with her father, Mr Riley as agreed between her parents. Although the orders do not provide for C to spend defined time with her father, there is no evidence to suggest the mother and Mr Riley will not reach agreement as to this matter. The mother had at all times encouraged C to have a meaningful relationship with Mr Riley and facilitated that time occurring prior to the court ordering otherwise when Mr Riley’s offence first came to light. The mother has continued to facilitate C’s time with Mr Riley following the order prohibiting such contact being discharged. The orders also provide for the mother and Mr Riley to equally share parental responsibility for C which will also support Mr Riley having a meaningful or significant relationship with his child.
The orders do not provide for B to spend any time or communicate with his father, Mr Easton. As previously noted, Mr Easton did not seek any interim orders in relation to B and the child has not spent any time with his father since mid-2014. Mr Easton only proposed limited supervised time with his son on a final basis which would be insufficient to support a meaningful relationship. Further and significantly, it can be taken from Mr Easton’s failure to participate in these proceedings since August 2016 that he does not wish to pursue having a meaningful relationship with his son. In these circumstances I am of the view that there will be no positive benefit to B by a court attempting to craft orders to foster that relationship.
The need to protect the children from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence
This is a significant factor in this matter as both of the children suffer from disabilities and are vulnerable.
The need to protect C from any risk of harm posed by Mr Easton is a significant issue in this matter given the allegations that he sexually abused C. Although as previously noted I am not positively satisfied that the sexual abuse occurred to the requisite standard the question of unacceptable risk posed by Mr Easton on this basis must still be considered.
Relevantly, JIRT substantiated the sexual abuse allegations made by C against Mr Easton on two separate occasions. On the second occasion C specifically disclosed to Suburb G JIRT “her step-dad had s-e-x with her” on more than two occasions and was able to accurately describe sexual intercourse. The only action taken at the time was to obtain an AVO against Mr Easton for C’s protection which has now expired.
When tested for sexually transmitted infections it was found that both C and Mr Easton had Type I [genital] herpes.
Mr Easton did not participate in the interviews for the Single Expert Report and has not participated in these proceedings for some time. Of significance is that he has adduced no evidence in relation to the sexual abuse allegation against him.
Clearly there is some risk that Mr Easton did sexually abuse C.
In Deiter & Deiter[12] the Full Court was concerned with the situation where disputed facts related to an assessment of risk. The Court said at [61]:
Risk assessment comprises two elements - the first requires prediction of the likelihood of the occurrence of harmful events, and the second requires consideration of the severity of the impact caused by those events. In our view, the assessment of risk in cases involving the welfare of children cannot be postponed until the last piece of evidence is given and tested, and the last submission is made. We accept, however, that it is always a question of degree depending on the evidence that is before the Court.
[12] [2011] FamCAFC 82
So far as the first element, I am of the view that there is some likelihood that the harmful acts would occur in the future if Mr Easton were to spend unsupervised time with either child.
In regards to the second element, it is beyond dispute that the nature of sexual abuse of a child is such that the magnitude of harm would be great if such acts were to occur.
In light of the above circumstances I am of the view that Mr Easton poses an unacceptable risk of harm to the children.
The risk of harm posed by Mr Riley towards C on the basis of his conviction for indecent assault of a minor is also raised in this matter.
There has been no suggestion that Mr Riley has ever been inappropriate with C or that he has committed any further sexual offences since his conviction in 2009.
Mr Riley demonstrated good insight as to the inappropriateness of his actions by admitting to the offence and pleading guilty. Mr Riley’s pre-sentence report also indicates that he showed an appropriate level of guilt and remorse over the offence and has been diagnosed with Asperger’s Syndrome.
Further, that pre-sentence report also indicated that Mr Riley “would have a low to moderate risk of sexual recidivism” and recommended that he undertake a sex offender’s treatment program.
Mr Riley completed the recommended sex offender’s treatment program in July 2010 and reported to the expert that he has undertaken a variety of self-improvement course. The Single Expert identified that it was “because of [Mr Riley’s] Asperger’s Syndrome and unusual presentation [and] openness about the abuse that he was given parole and was not jailed but was placed on the sexual offenders list.”
The Single Expert formed the view that Mr Riley was not an unacceptable risk of harm to the children.
Dr E is a very experienced specialist child family and adult psychiatrist, having worked in that role for over 25 years. He interviewed all relevant members of the family and also interviewed the mother with Mr Riley and Mr Riley with C. He had access to the affidavits of each party and the Notice of Risk filed by the mother and to documents produced on subpoena from a number of sources. Dr E’s conclusions in his report were not challenged. For these reasons I accept the opinion of the expert and attach significant weight to it.
In these circumstances I am of the view that the issues of risk posed by Mr Riley have been addressed to such an extent that I do not find that this risk is unacceptable.
The risk of harm posed by the mother to the children must also be considered. In February 2012 and June 2012 Community Services received reports concerning risk of harm to the children in the mother’s home. These reports identified that both children had brain development delays and raised concerns about the general cleanliness and hygiene in the home. Referrals were made to a variety of support programs for the mother and children including the D Group. Both reports were closed without assessment.
There is no evidence other than these reports that the mother has neglected the children and the Single Expert was of the opinion that the mother is a capable parent. There have been no reports of the children being at risk of harm in the mother’s care made to Community Services for over four years since the two reports in 2012. I am of the opinion that there is no unacceptable risk of harm in the mother’s care.
Additional considerations: s 60CC(3)
Section 60CC(3) then sets out additional considerations the Court must consider when determining a child’s best interests and I will refer to those which are relevant in this case.
Views of the children and factors underlying those views
The Single Expert noted that C has mild intellectual difficulties but that she quite clearly expressed the wishes to remain close to her mother and to have contact with Mr Riley and her paternal grandmother.
Given C’s age, and bearing in mind her mild intellectual delay, I afford some weight to her views.
The Single Expert did not interview B alone and B did not express any specific views to the Expert. However, given B’s significant developmental delay and his younger age, limited weight will be afforded to any views he has expressed.
Nature of the children’s relationship with each parent and other significant persons (including grandparents or other relatives)
The Single Expert formed the opinion that C had a strong attachment to the mother and a strong and positive bond with Mr Riley, identifying both adults as well as B as being part of her family.
The Single Expert opined that B seemed to have a strong attachment to his mother and sister but he did not acknowledge Mr Riley during the interview.
Nothing is known of Mr Easton’s relationship with the children as he did not make himself available for assessment by the Expert. He has not seen either child for some years.
Extent to which each of the parents have taken or failed to take the opportunity to participate in long-term decision making regarding the children and to spend time and/or communicate with the children
It is a matter of considerable weight that Mr Easton has effectively abandoned playing any role in B’s life through failing to participate in these proceedings including failing to attend the appointments with the Single Expert.
Mr Riley although not seeking to have C live with him has persistently sought to be involved in C’s life. He had continued to see her throughout her life until the mother became aware of his conviction and ceased making the child available to him in accordance with court orders. Consistent with the efforts Mr Riley has made throughout his life to be involved in decision making concerning C he will share equal parental responsibility under the orders.
Extent to which each parent has fulfilled or failed to fulfil their obligation to maintain the children
The only available evidence suggests the mother has for a number of years maintained both of the children who have been in her full time care without any financial support from either father.
The Single Expert indicated that Mr Riley and the mother have cooperated in regards to the wellbeing of C and that the two had supported one another to a reasonable degree.
Likely effect of change in children’s circumstances and the practical difficulty and expense involved in spending time with and communicating with the other parent
There will be no change in the children’s circumstances brought about as a result of these orders. Mr Easton has not spent time with B since mid-2014 or communicated with him and B has lived with his mother who has adequately met his needs.
Similarly, C will continue to live with her mother and spend time with her father.
There is no practical difficulty and expense associated with C spending time and communicating with her father.
Capacity of each parent and any other person (including grandparent or other relative) to provide for the children’s needs including emotional and intellectual needs and attitude to the children and responsibilities of parenthood demonstrated by each parent
Parental capacity and attitudes to the responsibilities of parenthood are significant matters for these children.
The mother herself has learning and development problems which restrict her capacity to parent the children, particularly as both C and B have special needs.
C has Motor Dyspraxia which restricts her capacity to physically care for herself. At final hearing the mother gave evidence that C required assistance with tending to her personal hygiene needs including showering and other personal care.
B has Global Developmental Delay. The Single Expert observed that B was an extremely active child who was not very verbal. The mother indicated to the Single Expert that B was an intense, demanding and active child and she needed and wanted respite from caring for him. The mother appeared to the Single Expert to have trouble managing and redirecting B.
The Single Expert formed the following opinion of the mother:
Overall, despite her restrictions I formed the view that she was a capable and caring parent and that she could continue to care for both children. Nevertheless it’s evident that the stress and load on her is enormous and this is likely to continue to grow and her ability to manage her responsibilities is likely to becoming increasingly tested particularly as [C] progresses through her teenage years and [B] approaches puberty.
In response to questions raised by the Court regarding her capacity to care for the children the mother gave oral evidence at final hearing that she had applied for the National Disability Insurance Scheme (‘NDIS’) for support for B, C and herself. The mother also gave evidence under cross examination that she has accessed a variety of services for assistance with the children including the D Group and H Group and utilises a respite care service for both children at regular intervals. The mother also has the support of her parents.
The mother understands that she needs assistance with the children and has demonstrated an ability to access and utilise a variety of support services. This will be monitored and supported by the continuing involvement of the ICL over the next 12 months.
I am confident that the mother has adequate parenting capacity and is a responsible parent who understands her limitations and is able to seek appropriate assistance to ensure the children’s wellbeing.
Some concerns arise in regards to Mr Riley’s capacity to provide for C’s needs given his diagnosis of Asperger’s Syndrome. However, Mr Riley has demonstrated a strong understanding of the responsibilities of parenthood by diligently pursuing spending time with C since her birth and increasing his efforts to be involved in her life following the allegations of sexual abuse by Mr Easton in 2013. Relevantly the Single Expert stated:
I was impressed with the fact that [Mr Riley] has shown significant interest in [C]. He does appear to have a strong bond with her. I believe he does understand the levels of need of biological, psychological and social development. He does understand that she has been sexually assaulted and that this is potentially very damaging to [C]. He wants to be able to continue a relationship with her.
I am of the view that Mr Riley’s Asperger’s Syndrome does not interfere with his ability to parent C and that he has the capacity to provide for C’s needs when he spends time with her.
Real questions arise concerning whether Mr Easton has sufficient capacity to play any meaningful role in B’s life. Significant concerns arise from my finding that he poses an unacceptable risk of harm to the children about his attitude towards C and the responsibilities of parenthood.
It is difficult to imagine a greater dereliction of the duties and responsibilities of parenthood than sexual abuse of a child. The sexual abuse allegations having been substantiated on two separate occasions in conjunction with the fact that Mr Easton has chosen to disengage from proceedings and not pursue any kind of relationship with B is indicative of his poor attitude to parenting and his extremely limited capacity to provide for B or C’s needs.
Maturity, sex, lifestyle and background (including culture and traditions) of the children and either parent
Both children have special needs and both the mother and Mr Riley have intellectual and physical limitations. However, these concerns appear to be being addressed by the mother and Mr Riley to the best of their abilities as discussed earlier in these reasons.
Family violence and any family violence order relating to the children or a member of the children’s family
There is no evidence that family violence is involved in this matter other than the unacceptable risk of sexual harm posed by Mr Easton that has been addressed earlier in these Reasons.
Whether it would be preferable to make an order least likely to lead to the institution of further proceedings in relation to the children
The orders made by consent of the mother and Mr Riley and in the absence of Mr Easton on the day of final hearing appear to be the least likely to result in the institution of further proceedings and are supported by the ICL.
Any other relevant fact or circumstance
The allegations of sexual abuse and the unacceptable risk of harm posed by Mr Easton to C constitutes another relevant fact or circumstance that must be considered given C is not Mr Easton ’s biological child. However as Mr Easton was in a parental relationship with C at the time of the alleged sexual abuse this has been considered at length earlier in these Reasons.
Parental responsibility
Unless the Court makes an order changing the statutory conferral of joint parental responsibility, s 61C(1) of the Act provides that each of the parents of a child has parental responsibility for the child.
Section 61B defines “parental responsibility” as “all the duties, powers, responsibilities and authority which, by law parents have in relation to children”.
In Goode & Goode[13] the Full Court held that there is a difference between parental responsibility which exists as a result of s 61C of the Act and an order for shared parental responsibility, which has the effect set out in s 65DAC of the Act. The Court held that in the former, as there is no Court order in effect, the parties will exercise the responsibility either independently or jointly. On the other hand, once the Court has made an order allocating parental responsibility between two or more people, including an order for equal shared responsibility, the major decisions for long-term care and welfare of children must be made jointly, unless the Court provides otherwise.
[13] (2006) FLC 93-286
Where the Court is to determine parental responsibility, the starting point is s 61DA. This section provides that when making a parenting order in relation to a child, 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. The presumption does not apply if there are reasonable grounds to believe that a parent or person who lives with a parent has engaged in abuse of the child, or another child, or family violence (subsection 61DA(2)), or may be rebutted by evidence satisfying the Court that it would not be in the child’s best interest for the parents to have equal shared parental responsibility for them (subsection 61DA(4)).
So far as parental responsibility for B is concerned, the mother seeks that it be allocated to her alone. In his Response filed 2 October 2015 Mr Easton also sought final orders that the mother have sole parental responsibility for B.
Even if the parties were not in agreement as to this point, Mr Easton has not seen B since 2014 and I have made a finding that Mr Easton poses an unacceptable risk of harm to the children meaning that an order for equal shared parental responsibility would not be in B’s best interests.
Given that the mother is to have sole parental responsibility for B, I need not turn to s 65DAA of the Act, so far as that child is concerned.
In regards to C both the mother and Mr Riley sought and consented to orders that they equally share parental responsibility for C. There is no evidence before the Court that would rebut the presumption of equal shared parental responsibility.
As an order has been made for the mother and Mr Riley to have equal shared parental responsibility for C, under s 65DAA of the Act, I must consider whether C spending equal or substantial and significant time with the mother and Mr Riley would be in her best interests, and whether such an order is reasonably practicable.
Neither the mother nor Mr Riley seeks an arrangement where C spends equal time with each of them. Both seek that C live with the mother and spend time with Mr Riley as agreed between them.
As previously mentioned in these Reasons Mr Riley has limitations on his capacity to parent and spend time with C.
It must be noted that Mr Riley’s consistent and sustained attempts to spend time with and remain a presence in the life of C are admirable. He is currently spending as much time with C as he is capable of given his limitations and the fact that he also spends time with his two other children from another relationship.
The Single Expert opined that Mr Riley has a “regular and healthy relationship” with C and his two other children and that him spending time with the children would be a positive outcome for C, B and their mother.
In these circumstances I am of the opinion that Mr Riley spending as much time as he is able with C as agreed between him and the mother is in C’s best interests.
Conclusion
Having regard to all of the factors in relation to the best interests of the children I make orders as set out at the forefront of these Reasons for Judgment and consented to by the mother and Mr Riley and in the absence of Mr Easton .
I certify that the preceding one hundred and thirty five (135) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 19 April 2017.
Associate:
Date: 19 April 2017
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Consent
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Procedural Fairness
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Standing
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