RANIERI & SULLIVAN
[2015] FamCA 1033
•24 November 2015
FAMILY COURT OF AUSTRALIA
| RANIERI & SULLIVAN | [2015] FamCA 1033 |
| FAMILY LAW – CHILDREN – sole parental responsibility – father to spend supervised time for six months – the mother and the father to undertake individual counselling – where the evidence of each of the parties is inconsistent – where it is found that the father is not an unacceptable risk. |
| Family Law Act 1975 (Cth) s 4 s 4AB s 60B s 60CA s 60CC s 61DA s 61DAA s 65DAC s 65L Evidence Act 1999 (Cth) s 140 |
| Banks & Banks [2015] FamCAFC 36 B Mahendra “Psychiatric Risk Assessment in Family and Child Law” (2008) 38 Family Law 569 |
| APPLICANT: | Mr Ranieri |
| RESPONDENT: | Ms Sullivan |
| INDEPENDENT CHILDREN’S LAWYER: | Ms Lehmann |
| FILE NUMBER: | CSC | 630 | of | 2013 |
| DATE DELIVERED: | 24 November 2015 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Cairns |
| JUDGMENT OF: | Tree J |
| HEARING DATE: | 2 and 3 November 2015 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Victoire |
| SOLICITORS FOR THE APPLICANT: | Newman Family Law |
| COUNSEL FOR THE RESPONDENT: | Ms Lawrence |
| SOLICITORS FOR THE RESPONDENT: COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: SOLICITORS FOR THE INDEPENDENT CHILDREN’S LAWYER: | Sandra Sinclair Lawyers Mr Jacobs Lehmann Featherstone |
Orders
All previous parenting orders are forthwith discharged.
Ms Sullivan (“the mother”) have sole parental responsibility for the child B born … 2011 (“the child”).
The child live with the mother.
Mr Ranieri (“the father”) spend time with the child at the C Town Contact Centre, and subject to availability, that the time be fortnightly and of at least two hours duration, with the father meet all the costs of the same.
Within 28 days of these orders, the mother commence to undertake counselling as recommended by Mr D at paragraph 57 of his Family Report dated 7 May 2015, and continue reasonable engagement with that practitioner as recommended by her or him until such time as the counsellor advises in writing that the mother has sufficiently addressed the issues raised by Mr D. The mother shall provide a copy of that advice from her therapist to the father and the Independent Children's Lawyer.
The father is to commence to undertake the counselling as recommended by Mr D at paragraphs 58 and 59 of his Family Report dated 7 May 2015 and in his oral evidence (comprising a minimum of 8 sessions with either Mr E or Mr F) and continue reasonable engagement with that practitioner as recommended by him until such time as the counsellor advises in writing that the father has successfully completed such therapy. The father is to provide a copy of that advice from his therapist to the mother and the Independent Children's Lawyer.
Upon the father providing that written advice to the mother and the Independent Children's Lawyer, then he is to spend unsupervised time with the child as follows:
(a)One Saturday each fortnight from 9:00am to 12:00pm (not at the Contact Centre and not supervised) with such changeovers to occur at the Contact Centre and on the alternate fortnight that a Saturday visit continue at the Contact Centre for a period of 4 months (ie the father will be having weekly visits one supervised and one at the Contact Centre);
(b)Thereafter the visits be one Saturday each fortnight from 9:00am to 2:00pm (not at the Contact Centre and not supervised) with changeovers to occur at the Contact Centre for a period of 4 months;
(c)Thereafter the visits be from one Saturday each fortnight from 9:00am to 5:00pm (not at the Contact Centre and not supervised) with such changeovers to occur at the Contact Centre.
Upon the visits in 7(b) commencing, the parties’ compliance with these orders is to be monitored by a s 65L consultant, who upon commencing that role, shall liaise with the Contact Centre regarding the prior history of the visits and changeovers at the Centre, and generally with the Independent Children's Lawyer, if she has not by then been discharged.
After 6 months of visits as contemplated in order 7(c), the father is to provide sworn affidavits by any persons then living in his residence to both the mother and s 65L consultant. The parties are to thereafter attend a Child Dispute Conference with the s 65L consultant with a view to agreeing the trialling of overnight visits. In the event that such mediation is unsuccessful, the father shall have liberty to file a fresh application seeking overnight time with the child. The father must file with such application affidavits by all other persons who are then living in his residence.
The mother and father:
(a)have leave to publish these orders with the reasons for them dated 24 November 2015 and the two Family Reports of Mr D to their respective counsellors; and
(b)are required to so publish them to their respective counsellors at their time of initial engagement.
The Independent Children's Lawyer be discharged with the thanks of the Court upon either the earlier of:
(a)The s 65L consultant being engaged under these orders: or
(b)The later of 12 months from the date of these orders, or the conclusion of any appeal that may be brought in relation to them.
Otherwise all extant applications be dismissed and the matter is removed from the list of active pending cases.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Ranieri & Sullivan 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 CAIRNS |
FILE NUMBER: CSC 630/2013
| Mr Ranieri |
Applicant
And
| Ms Sullivan |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
By the conclusion of the trial of these parenting proceedings, Mr Ranieri (“the father”) sought orders that Ms Sullivan (“the mother”) have sole parental responsibility for the child B, born in 2011 and hence presently 4 years of age (“the child”). He further sought orders that the child live with the mother in C Town, but spend fortnightly supervised time with him at the C Town Contact Centre. He also proposed that he be required to engage in therapeutic counselling with a view to addressing his problematic conduct (comprising anti-social and/or abusive behaviours) until the therapist believes that he has sufficiently addressed them, to the point where it can be said that the therapy has been successful. Upon that event – accepting it may never occur – he proposed that his time with the child progress to unsupervised time, ultimately culminating in eight hours of time each alternate Saturday, with changeovers to continue at the Contact Centre. It was then proposed that the parties should be required to engage in mediation with a view to negotiating the commencement of the child spending overnight time with the father. Failing such agreement being reached, his proposal was that his time continue at eight hours unsupervised time each alternate Saturday, save that he have liberty to apply to seek overnight time.
By her Amended Response to Initiating Application filed 19 June 2015, the mother seeks orders that she have sole parental responsibility for the child, who should live her and spend no time with the father. She justifies such orders on the basis that the father presents an unacceptable risk of both physical and emotional harm to the child. Although at the start of the trial she also contended, if the child continued to have any interaction with the father, that would destabilise her to the point where it would substantially impair her parenting capacity, she abandoned that agreement during the hearing. She also seeks orders that she be permitted to relocate with the child to Brisbane.
The Independent Children's Lawyer supported the orders sought by the father.
BACKGROUND FACTS
The father
The father was born in Sydney in 1972 and hence is presently 43 years of age. After completing school, he undertook and completed an apprenticeship. When aged 22, he married, and to that relationship had two children, Ms G (presently about 20 years of age) and H (presently 17 years of age). In approximately 2004 he and his then wife and children moved to C Town. In about 2009 the marriage failed, and it seems as though shortly thereafter his ex-wife and two children went to live in Brisbane. In early 2009, when the father was aged 36, he met the mother at a bar in C Town.
The mother
The mother was born in Brisbane in 1977 and hence is presently 38 years of age. Together with her parents and siblings she moved to C Town when she was 7 years of age, but thereafter her parents separated. The mother remained living with her mother and step-father in C Town. She commenced a de facto relationship in 1995 and was married to that partner in 2001. There were three children to that marriage, Mr J (who is presently about 18 years old) K (presently about 15 years old) and L (presently about 12 years old).
The mother’s first marriage concluded in about 2006; her property and children’s proceedings resolved seemingly by consent. Those arrangements saw the three children continue to live with the mother, but spend weekend time with their father. In 2009 that moved to the children spending week about arrangements between the two households.
That was the situation which prevailed when in 2009, at 31 years of age, the mother met the father and commenced a relationship with him.
The relationship
After the parties met, the father contacted the mother and they went out for lunch the next day. Both parties identify that for practical purposes that is when their relationship commenced. In July 2009 they became engaged to be married. They had not commenced cohabiting at that time but they were spending a lot of time at each other’s houses. Indeed the mother says that from about February 2009 the father was spending about five nights per week nights at her home.
In about April 2009 an incident occurred when the father was at the mother’s home. She noticed what she thought to be a van undertaking surveillance of her. She told the father and he went outside to try and confront the person in the van. The mother says that he obtained a baseball bat from his car before approaching the van, which is denied by the father. However the father does agree that when the van sped off he gave pursuit, until the van stopped at a nearby police station. Police investigated and determined that the man was a private investigator legitimately undertaking surveillance. The father identified that the surveillance was likely to do with his recently concluded relationship with his wife. Indeed the mother says that the father’s then ex-wife commenced some aggressive email communication with her. It appears as though there is some prospect that the father’s marriage had not in fact wholly failed by the time that he commenced seeing the mother. The mother says – and nothing turns it – that when she commenced her relationship with the father, he misled her into believing that in fact he had only one child from a casual sexual encounter, and denied that he was married.
On 17 October 2009 the first alleged event of domestic violence occurred. I will consider that in detail in due course. However in consequence of the events of that evening, on 5 November 2009 a domestic violence order was made, in which the mother was the aggrieved and the father the respondent. The order expired on 4 November 2011. Unusually both the mother and father deny that they were in fact aware of the existence of that order during any of the time it was in force, although as shall later be seen, I do not accept the father’s claim in that regard. Although the events of the evening of 17 October did cause the parties not to communicate or spend time with each other for a week or two, it is also common ground that the parties thereafter reconciled their differences and the relationship continued.
It appears as though the next year was rather unremarkable. Then in 2011, the child was born. At the time, the father had been working on a week-on, week-off basis somewhere on Cape York Peninsula. With the child’s birth he ceased employment for about two months, and then obtained a position working away in Western Australia, again on a fly-in, fly-out basis. The Western Australian job saw the father spend three weeks away and either one or two weeks at home. He was apparently injured whilst at that work and went onto compensation after some time. He then later obtained further employment at M Town on a fly-in, fly-out basis.
The mother asserts that for most of the relationship the father exerted, or attempted to exert, control over her and the three children from her previous marriage. I will discuss those allegations in due course. The mother also asserts that the father was very sexually demanding of her. Not much turns upon that issue, and it is unnecessary to resolve it.
At some stage the father then commenced working away in Papua New Guinea. That appears to have seen him work for a month away at a time followed by a week at home. It does not appear to be controversial that at about this time the mother’s communication with her ex-husband improved, and she was speaking with him from time to time on the telephone. The father accepts that he was surprised by this, and concedes that he was for some period of time – he seems to think it short – jealous of the mother’s communication.
In about April 2013 the father travelled by himself to Sydney. The mother says that whilst he was away she received a number of strange text messages from him, which she interpreted as having been mistakenly sent to her, being really intended for another woman whom she suspected that the father was then seeing. Plainly by now the relationship was foundering.
When the father returned home from Sydney the mother says that he was blind drunk. I should say that alcohol abuse by both parties was a major issue in their cases against the other. In May 2013 the parties went out for dinner. There was an altercation in consequence of which the father did not spend the evening with the mother. Four days later, on the pretext of going shopping, the mother left the father, taking the children with her, and only the clothes they were wearing. In fact she drove off to her mother’s house and thereafter the parties have not cohabited. Both parties accept that separation then occurred.
The father then commenced to send the mother a large number of text messages. It appears as though he was unhappy that the relationship had terminated.
On 31 May 2013 the father arranged for the car in which the mother had driven off – which was in his name – to be repossessed from her. He also arranged for her telephone to be disconnected.
Sometime in June the mother obtained an interim domestic violence order against the father. She asserts that thereafter the father commenced to either himself, or using others, drive to and park outside her house. She says that the father arranged for others to commence returning items of the child’s to her at that address. One of the persons in question was the father’s sister.
On 22 October 2013 the father commenced these proceedings.
On 25 October 2013 final domestic violence orders were made against the father by consent but without admission.
On 3 December 2013 Judge Willis of the Federal Circuit Court made interim orders by consent that the child live with the mother and the father commence to spend supervised time with the child at the C Town Contact Centre. In broad terms, the father has thereafter spent two hours per month with the child there.
Since the separation the father has had about four or five short term relationships. At the time of trial he was cohabiting with a 21 year old woman, of whom I know little other than her name. It was also anticipated that shortly after the trial concluded, the father’s son to his first marriage would come to live with him from Brisbane. He now conducts his own business.
The mother has not re-partnered since separation.
THE ISSUES
During the course of the trial I identified, with the assistance of the parties, that the following are the issues likely to substantially determine the outcome of these proceedings:
1.Has the father engaged in abuse of a child or family violence;
2.What, if any, risk does the father pose to the child;
3.Would the child benefit from having a meaningful relationship with the father;
4.What, if any, risk does the mother pose to the child, and particularly would she facilitate a meaningful relationship between the father and the child;
5.What improvement, if any, would moving to Brisbane have upon the mother’s parenting capacity or personal circumstances generally.
Once I have discussed those issues, in advance of addressing any remaining relevant s 60CC considerations, I will then determine the appropriate parenting orders in this case.
LEGAL STATUTORY PROVISIONS AND LEGAL PRINCIPLES
The statutory regime
Part VII of the Family Law Act contains the relevant statutory provisions dealing with children. Section 60B specifies the objects of Part VII, and the principles underlying those objects in the following terms:
(1) The objects of this Part 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.
(2) 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).
Section 61DA(1) of the Family Law Act provides that the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. In the event that, either because that presumption applies, or because it is otherwise in the child’s best interests that there be an order providing for equal shared parental responsibility, the court is obliged pursuant to s 65DAA(1) to then consider certain matters, including whether the child should spend equal time with each of the parents, or substantial and significant time.
However s 61DA(2) provides that the presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in either abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family) or family violence. Further, subsection 61DA(4) provides that the presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for its parents to have equal shared parental responsibility.
In this context it is convenient to also advert to s 65DAC, which sets out the effect of a parenting order that provides for shared parental responsibility. By subsection (3) such an order is taken to require each of the persons subject to it to consult with the other person in relation to the decision to be made about any major long-term issue in relation to the child, and make a genuine effort to come to a joint decision about that issue. It can therefore be seen that the obligations which an order effecting equal shared parental responsibility imposes are potentially onerous.
Finally s 60CA provides that in deciding whether to make a particular parenting order, the court must regard the best interests of the child as the paramount consideration. The matters which a court must have regard to in determining the best interests of a child are set out in s 60CC. Consideration does not mean discussion: Banks & Banks [2015] FamCAFC 36 at [49].[1] In Mauldera & Orbel (2014) FLC 93-602 the Full Court had occasion to consider the interrelationship between s 60B and ss 60CC. At [72] the Court applied the principles enunciated in Wacando v The Commonwealth (1981) 148 CLR 1 in concluding that objects clauses, such as those contained within s 60B(1) can be used as an aid to the construction of words of legislation, but cannot be used to cut down the plain and unambiguous meaning of a provision if that meaning in its textual and contextual surroundings is clear (quoting from S v Australian Crime Commission (2005) 144 FCR 431 at [22] per Mansfield J). At [79] the Court concluded that the primary Judge could not attach greater weight to the factors referred to in s 60B than to the outcome of her s 60CC deliberations, and in doing so, her Honour had erred.
[1]Albeit decided in the context of interim parenting orders, there seems no reason in principle why any different conclusion would apply in final orders.
Abuse, neglect and family violence
“Abuse” is defined in s 4 of the Family Law Act in the following terms:
Abuse, in relation to a child, means:
(a) an assault, including a sexual assault, of the child; or
(b) a person (the first person) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is unequal power in the relationship between the child and the first person; or
(c) causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or
(d) serious neglect of the child.”
Neither the term “neglect” nor indeed “serious neglect” appears to be defined in the Act; absent any indication in the Act to the contrary they should therefore have their usual dictionary meanings. I can discern no contrary indication in the Act. The relevant definition of the word “neglect” in the Macquarie Dictionary is “to be remiss in care for or treatment of.”
“Family violence” is defined in s 4AB(1) of the Family Law Act in the following terms:
For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the persons family .. or causes the family member to be fearful.
Section 4AB(3) provides that for the purposes of the Act, a child is exposed to family violence if the child sees or hears family violence, or otherwise experiences the effects of family violence. Section 4AB(2) and (4) respectively give examples of behaviour that may constitute family violence, and examples of situations that may constitute a child being exposed to family violence.
The standard of satisfaction required
S 140 of the Evidence Act 1999 (Cth) provides as follows:
140(1) In a civil proceeding, the Court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2) Without limiting the matters that the Court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence;
(b) the nature of the subject-matter of the proceedings;
(c) the gravity of the matters alleged.
In Neat Holdings Pty Ltd v Karajan & Holdings Pty Ltd (1992) 67 ALJR 170 at 170-171 the majority of the High Court stated:
The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. On the other hand the strength of the evidence necessary to establish a fact or fact on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary “where so serious a matter as fraud is to be found”. Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a Court should not likely make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct.
Therefore consistent with s 140(2), in taking into account the gravity of the parties’ allegations against each other, I propose to carefully evaluate the evidence relied upon in support of such a contended finding and be particularly vigilant to identify and place reduced weight upon “inexact proofs, indefinite testimony or indirect inferences.”[2]
[2] See K v R (1997) 22 FamLR 592 and Re W (sex abuse – standard of proof) [2004] FamCA 768 at [15].
The notion of unacceptable risk
It is useful to consider the authorities which give some guidance as to what is an unacceptable risk, and particularly the relationship of any such risk with the orders that the Court is contemplating. A useful starting point is the decision of the Full Court in N & S & The Separate Representative (1996) FLC 92-655, where in the well-known passage at 82,713-4, Fogarty J said:
Thus, the essential importance of the unacceptable risk question as I see it is in its direction to Judges to give real and substantial consideration to the facts of the case, and to decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm to the child. Thus, the value of the expression is not in a magical provision of an appropriate standard, but in its direction to Judges to consider deeply where the facts of a particular case fall, and explain adequately their findings in this regard.
In M v M (1988) 166 CLR 69, the High Court had occasion to consider the approach in Family Court proceedings where there are allegations of sexual abuse of a child. At [20]-[25] the Court said as follows:
20. But it is a mistake to think that the Family Court is under the same duty to resolve in a definitive way the disputed allegation of sexual abuse as a court exercising criminal jurisdiction would be if it were trying the party for a criminal offence. Proceedings for custody or access are not disputes inter parties in the ordinary sense of that expression: Reynolds v Reynolds (1973) 47 ALJR 499; 1 ALR 318; McKee v McKee (1951) AC 352, at pp 364-365. In proceedings of that kind the court is not enforcing a parental right of custody or right to access. The court is concerned to make such an order for custody or access which will in the opinion of the court best promote and protect the interests of the child. In deciding what order it should make the court will give very great weight to the importance of maintaining parental ties, not so much because parents have a right to custody or access, but because it is prima facie in a child's interests to maintain the filial relationship with both parents: cf. J. v Lieschke [1987] HCA 4; (1987) 162 CLR 447, at pp 450, 458, 462, 463-464.
21. Viewed in this setting, the resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the court's determination of what is in the best interests of the child. The Family Court's consideration of the paramount issue which it is enjoined to decide cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse. The Family Court's wide-ranging discretion to decide what is in the child's best interests cannot be qualified by requiring the court to try the case as if it were no more than a contest between the parents to be decided solely by reference to the acceptance or rejection of the allegation of sexual abuse on the balance of probabilities.
22. 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] HCA 34; (1938) 60 CLR 336, at p 362. There Dixon J. said:
"The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters 'reasonable satisfaction' should not be produced by inexact proofs, indefinite testimony,
or indirect inferences."His Honour's remarks have a direct application to an allegation that a parent has sexually abused a child, an allegation which is often easy to make, but difficult to refute. It does not follow that if an allegation of sexual abuse has not been made out, according to the civil onus as stated in Briginshaw, that conclusion determines the wider issue which confronts the court when it is called upon to decide what is in the best interests of the child.
23. 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. Again, in the nature of things there will be very many cases, such as the present case, in which the court cannot confidently make a finding that sexual abuse has taken place. And there are strong practical family reasons why the court should refrain from making a positive finding that sexual abuse has actually taken place unless it is impelled by the particular circumstances of the case to do so.
24. 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. Even in such a case, however, there may be a risk of disturbance to a child who is compulsorily brought into contact with a parent who has sexually abused her or whom the child believes to have sexually abused her. But that is not the issue in this case.
25. Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. The degree of risk has been described as a "risk of serious harm" (A v A [1976] VicRp 24; (1976) VR 298, at p 300), "an element of risk" or "an appreciable risk" (Marriage of M (1987) 11 Fam LR 765, at p 770 and p 771 respectively), "a real possibility" (B. v. B. (Access) (1986) FLC 91-758, at p 75,545), a "real risk" (Leveque v Leveque (1983) 54 B CLR 164, at p 167), and an "unacceptable risk" (In re G. (a minor) (1987) 1 WLR 1461, at p 1469). This imposing array indicates that the courts are striving for a greater degree of definition than the subject is capable of yielding. 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.
In Harridge & Harridge [2010] FamCA 445 Murphy J, having referred to N & S & The Separate Representative (supra), proceeded to adopt the following list of inquiries in relation to risk assessment:[3]
(1) What harmful outcome is potentially present in this situation?
(2) What is the probability of this outcome coming about?
(3) What risks are probable in this situation in the short, medium and long term?
(4) What are the factors that could increase or decrease the risk that is probable?
(5) What measures are available whose deployment could mitigate the risks that are probable?
[3] Taken from B Mahendra “Psychiatric Risk Assessment in Family and Child Law” (2008) 38 Family Law 569.
I gratefully adopt that passage as helpful in cases such as these in analysing the asserted risk.
“No contact” orders
Plainly it is a serious matter to order that a child neither spend time with nor communicate with a parent. Such orders properly ought be restricted to cases where that outcome is plainly mandated in the best interests of the child, and no other regime of orders is appropriate or workable. Such orders are commonly employed where the Court is satisfied that a parent poses an unacceptable risk of harm to a child, which cannot be ameliorated by supervision of time and communication between that parent and the child. The authorities germane to that situation were reviewed by the Full Court in Re Andrew (1996) FLC 92-692.
Moreover, it is incumbent upon the court to clearly explain its reasons for any conclusion that safeguarding conditions cannot sufficiently mitigate the risk posed by the parent: see Blinko & Blinko [2015] FamCAFC 146 at [30].
HAS FATHER ENGAGED IN ABUSE OR FAMILY VIOLENCE
Overview
The mother asserts that the father has engaged in family violence, comprising physical assaults of herself, and controlling or coercive behaviour. The father denies ever having so ever conducted himself. Somewhat remarkably, there is little, if any, corroborative evidence of the mother’s allegations, and more, to the extent that the mother says other adults witnessed such behaviour, they were not called in the mother’s case.
As but one instance of the lack of corroboration, the mother asserts that on 17 October 2009, the father smashed the bedroom window of her house. The father denies that he smashed the window and does not know whether or not in fact it was smashed. The police were called. It is unclear from their report whether or not they viewed the smashed window, and certainly it does not appear as though they took any photograph of it. The police records are entirely silent on the matter.
Another illustration is in relation to email communication. The mother says that the father sent her emails which, if still in existence, would have provided some corroboration of her version of events, and that emails she sent the father would have provided that corroboration as well. However those emails were not available to put into evidence, because the mother says that the father hacked into her email account and deleted all offending material and only left some relatively benign emails. The father denies that he so acted.
The mother also asserts that the father has abused not only her three children from the earlier relationship (particularly the elder boy, Mr J) but also the child the subject of these proceedings as well. However again, even though Mr J was interviewed by the Family Report writer, Mr D, and was an adult by the time of these proceedings, he was not called by the mother to substantiate any of her claims of abuse of him.
That said, equally remarkably, the father’s affidavit evidence was extremely light on when it came to refuting the serious allegations raised against him by the mother. He asserted that his affidavits were relevantly deficient because of problems from time to time with Legal Aid, and particularly a lack of Legal Aid in the days leading up to the commencement of the trial.
This then means that the resolution of the parties’ competing versions may stand to largely be determined by questions of credit. It is therefore appropriate that, in advance of considering the individual allegations, I discuss the parties’ credibility.
Credibility of parties
Generally
Having observed both the mother and the father giving evidence in the witness box before me, there were no obvious indications as to which of them was telling the truth in relation to their competing versions, or which of them was telling untruths. Although in cross-examination, the mother was confronted with some inconsistent statements that she had given to police from time to time, these are likely explicable by reference to the fact that she was probably drunk at the time that she was then speaking to police, or at least seriously affected by alcohol. For his part, the father appeared to give frank, confident evidence, and made reasonable concessions. Neither the mother nor the father suffered any serious damage to their credibility during the course of their cross-examinations. It is therefore necessary to look beyond their oral evidence to try and resolve the credit issues.
The father
The father had some psychological tests administered to him by the Family Report writer, Mr D. In discussing the validity of those test results, Mr D noted that the father’s “pattern of responses suggested a notable tendency to portray himself as being relatively free of common shortcomings to which most individuals will readily admit…” Mr D then said at paragraph [122]:
In a clinical setting, such results were in form that such further attention would be paid to the possibility that denial, or minimisation of problems with drinking and/or drug use would be occurring; as such individuals may have little insight into the impairment that results from such problems.
Later Mr D returned to the same theme at [149] where he said”
In essence, the writer formed an increasingly confident opinion that [the father] presents as an individual who has exhibited significant denial concerning his history and capacity of violence; and specifically experienced significant challenges in respect of his capacity for reasonable behaviour, emotional regulation and likely insight in respect of his own behaviours and impact on others.
However the father was also examined by a psychiatrist, Dr N in August 2014. Dr N said in his subsequent report:
I have no reason to disbelieve this man. In the interview he presented in a very calm, relaxed and matter-of-fact way and simply denied the accusations that were made against him.
Indeed, having seen him and taken the history, I would not have the slightest indication on the basis of that part of the assessment, the suggestion that he had any psychological, psychiatric or emotional problems…
I did note that [Mr D] obviously had some reservations about this man but I can only say that in this interview setting, he presents as a perfectly normal, ordinary, likeable, animated man of average intelligence generally coping well with his life.
…
I must confess that having seen him I have great difficulty accepting the claims that [the mother] made. However I cannot go beyond that.
…
Indeed, on the basis of the way he presents to me, I would have to say there is nothing that should stand against him in terms of what contact he should have with [the child].
…
In summary, my view is (with the reservation that I cannot guarantee the truthfulness of the history) that he does not have a psychiatric condition, that he is a contentious fellow and that he would have a lot to offer a child.
If we touch a little on the claims of hostility and aggression that the mother claims against him, it may well be that a lot of what she says is true but if that is the case, then it is likely to be in the context of the relationship and I do not believe it reflects on his overlying personality structure or style.
…
Plainly each of Mr D and Dr N are entitled to their views, but other than emphasising the difficulty of assessing credit, given the conflict between them, their opinions are of little assistance to me.
However there are some materials that do, to varying degrees, either corroborate the mother’s version of events, or at least cast doubt upon the father’s honesty, and particularly his evidence that he does not act in a violent, aggressive or controlling manner. These were identified by Mr Jacobs, who appeared as counsel for the Independent Children's Lawyer, as largely being found in subpoenaed documents retained by relevant police organisations pertaining to domestic violence orders and episodes.
The first, and perhaps most important, relates to the domestic violence order made on 5 November 2009. It is not at all clear how that order came to be made, but it appears most likely to have been initiated by Queensland Police consequent upon events on the night of 17 October 2009. By that order[4] the father was prohibited from going to, entering or remaining in, premises where the mother resided or worked. Moreover he was prohibited from following, or approaching within 20 metres of the mother, when she was at any place.
[4]Tender bundle p 29.
Whilst I will detail the events of the evening of 17 October 2009 in due course, as I have already observed, those events led to the parties not seeing and perhaps communicating with each other for some time. Precisely when their relationship resumed is unclear, but it is likely to have been prior to 5 November.
From a later police report dated 15 June 2013[5] it appears as though, for reasons which the evidence does not enable me to discern, the mother was never advised of the protection order having been made in her favour. However the following also appears in the police record[6]:
Whilst speaking with [the father], he has admitted that he had been served with [the 5 November 2009] order and knew of the extra conditions, however he still pursued a relationship with [the mother] and then eventually moved in with [the mother] over the two year time period in which the order was in force…
[5]Tender bundle p 9.
[6]Tender bundle p 10.
Therefore it can be seen that the father was, for two years of the relationship between himself and the mother, knowingly acting in breach of the order. I reject his evidence to the contrary, as I accept that the police report is an accurate account of what the father told police. Two things flow from that. The first is that it seems that the father is likely to ignore domestic violence orders when they do not suit his purposes. The second is that his assertion in evidence that he did not know of the order, is untrue.
The second matter relied upon by Mr Jacobs related to a later domestic violence order taken out against the father, in which his ex-wife was the protected person. That order was made on 6 April 2010. It prevented the father from contacting his ex-wife. It is said that the father breached it on two occasions in two different respects. The police records relevant to the first alleged breach[7] show that the father’s ex-wife reported to police on 21 December 2010 that, whilst she was sitting at home working on her computer, her mobile phone rang, showing a private number calling her. The police report continues “[u]pon answering the phone the aggrieved found it was [the father]. [The father] was asking the aggrieved where she lived and why wouldn’t the aggrieved tell him. The aggrieved then informed [the father] she won’t tell him as that is why she got the DV order as he had threatened to kill the aggrieved in the past. The respondent has then threatened something along the lines of that when the order is over and forgotten he will kill her. The respondent then asked to speak with his daughter which he did. When the phone was returned back to the aggrieved and was yelling words to the effect of “you’re a mole, you’re a loser” and the respondent has then hung up the phone.”
[7]Tender bundle p 4(b)and (c).
The police, however, did not prosecute the father, perhaps for two reasons. They were that the recording made by the ex-wife of the relevant conversation was “too muffled and distorted” and further, when the father was questioned, he pointed out that the order stated that he can contact his daughter by telephone, and the only way he could contact his daughter was via her mother.
The second alleged breach related to some text messages which were sent by the father’s phone to the ex-wife’s phone. Those text messages were part of exhibit 1. Some of them are very strange. However one sent on 21 January 2011 reads as follows:
I’m ringing you again now if kids don’t answer [Mr O] said it isn’t a problem getting full custody of kids and he would love 2 help me out 4 free.:-)
The police interviewed the father on 5 November 2011 and he denied knowledge of any of the messages, and was unable to provide any explanation as to the meaning of them. The police report continues:
The suspect admitted he often left his phone around and no pin in use so it could be used by anyone.
However in cross-examination, the father conceded that he did not make inquiry of any of the other occupants of his home to see whether or not they had sent the messages, which was said to be strange given the seriousness of a potential breach of a domestic violence order.
However Mr Jacobs particularly focussed upon the message recited above insofar as it referenced to “[Mr O]”. In cross-examination the father conceded that he did have a solicitor friend called Mr O, who in fact had (by a means not explained in the evidence) baptised his children to his earlier marriage. It is inexplicable how any other member of his then household (being the mother and her children to the previous relationship) could have known of Mr O, and would have been aware that he was known to the father’s ex-wife. Mr Jacobs said that I should find that the father did send the text message on 21 January 2011, and his denial to police of sending it was knowingly untrue. I accept that submission. I am satisfied that indeed the father did send his ex-wife the text on 21 January, knowingly in breach of the domestic violence order, and that his denial of sending to the police was advertently false.
The third matter relied upon by Mr Jacobs related to a domestic violence order to which the father was the respondent and the mother the aggrieved, made on 25 October 2013, which again prohibited him “from contacting or attempting to contact or asking someone else to contact [the mother].” At paragraphs 318 to 319 of her trial affidavit, the mother said that on 11 May 2014 she received a telephone call from the father, in which, to the best of her memory, he said:
[Ms Sullivan], you fucking slut, you’re fucking disgusting, you’re fucking disgusting, what you are doing is disgusting, you are a fucking slut. I’m watching you, I’ll fucking kill you, I will get my son and I will get the last laugh. You are a fucking disgusting slut.
The mother says the father then hung up, and that during the conversation she did not say anything. She telephoned her mother who told her that her stepfather had also received a call from the father. Later a friend of hers, Ms P, also told the mother that she too had received a call from him. A police investigation into that alleged breach apparently did not conclude with a prosecution of the father, however as Mr Jacobs pointed out, the mother was not cross-examined by counsel for the father to suggest that her evidence was untrue, although Mr Jacobs did concede that in his cross-examination the father denied he had so acted.
Mr Jacobs also pointed to some tendered material in which the father had sought to involve the police in what Mr Jacobs said was a form of harassment of the mother. For instance on 5 and 6 September 2013[8] the father sought to have police conduct welfare checks on the child, although he appeared to have no sound basis for doing so, or at least was not prepared to disclose any sound basis. Police records show that they believed that this was an attempt by the father to intimidate the mother, particularly because he was ringing on her birthday.
[8]Tender bundle pp 7 and 8.
Mr Jacobs also pointed to an earlier police document[9] in which, in justification for seeking the further domestic violence order in 2013 against the father, there appears a rationale as follows:
Police believe the respondent has used emotional abuse, intimidation, use male privilege, has made threats of suicide, has used denying and blaming throughout their relationship. As well as this, the aggrieved fear level is very high. To the extent that she left with only the clothes she was wearing and her youngest child the child. Police also believe that the children in this relationship need to be protected.
[9]Tender bundle p 10.
Mr Jacobs correctly identified that this was not the first occasion that police had formed this view in relation to the father’s conduct. He pointed to New South Wales Police records dating from 2002[10] which appear to show that the father had been making threats to other members of his family in New South Wales, including (albeit via a third party) to kidnap a child of one of them.
[10]Tender bundle pp 23 to 24.
Finally Mr Jacobs pointed to the father’s criminal history, apparently not disputed by the father, which showed that in 2002 he had been convicted of attempting to sell two unregistered pistols, was found in possession of marijuana, together with a marijuana plant that he was growing at his house, and had in his possession a knife in a public place.
From all of this material I am satisfied that the father’s evidence that he was unaware of the 5 November 2009 domestic violence order was false. Further, I am satisfied that on occasion the father has told untruths to police in the context of his alleged breaches of domestic violence orders. Further, that material would support an inference, which I draw, that where the father’s wishes conflict with a domestic violence order, he will not necessarily abide the order.
I therefore have serious doubts about accepting the father’s version of events unquestioningly. However all of this falls a long way short of persuading me that the father is generally an untruthful man, or that his evidence should be rejected in its entirety.
The mother
In cross-examination of the mother by Mr Victoire, counsel for the father, it became apparent that she had, at least in relation to the events of 17 October 2009, given quite markedly different accounts on the night in question to police, to those which appeared in her evidence. For instance, the initial police report[11] suggests that she drove home from the restaurant on the night, whereas of course her later evidence was that it was the father. Further, to the police she said that the father used her hair to bash her head against the tiled floor three times, whereas in later evidence she said that the father had punched her head three times. Moreover, although she was attended to by an ambulance on the night, there was no visible sign of injury to her, nor did she ever seek medical attention in relation to any such injury.
[11]Tender bundle p 2.
However in relation to the evening of 17 October 2009, during cross-examination, ultimately the mother conceded that the parties had had “lots and lots” to drink after they arrived home. Therefore one possible explanation for the substantial conflict between her evidence and the subpoenaed material is that at the time of her police statements, the mother was likely significantly under the influence of alcohol, and hence her experience and recollection of the events on the night in question may be severely impaired.
Other than on occasions when she was likely adversely affected by liquor, there is otherwise no basis to generally reject the mother’s testimony by reference to other material in evidence.
Evaluation
Ultimately I am unable to determine which of the parties is more likely to be an accurate historian than the other, or which of them is more likely to be an honest witness. Therefore I will need to resolve the conflict between their evidence on an issue by issue basis. That said, the material relied upon by Mr Jacobs does tend to support the suggestion, consistent with the general tenor of the mother’s case, that the father is a controlling and potentially violent person, who uses threats and intimidation to seek to have others bend to his will.
Family violence
Forced entry
The first episode of controlling behaviour relied upon by the mother was an occasion not long after the parties met, in which the father obtained entry into the mother’s home and left some flowers for her. The sinister aspect of that is that the mother says that the father used some locksmith tools to obtain entry to her house; the father says that the mother had given him a key, which the mother denies. The father concedes that he told the mother that he had broken into the home using locksmith tools, but says he only did that as a joke, in that he was surprised that she had so quickly forgotten that she had given him a key. The mother says that she in fact saw the relevant roll of tools in the father’s glovebox, and was able to describe them. She said that they were not typical tools such as screwdrivers or spanners or the like, but were tools she had not seen before. The father said that he carried a portable toolkit with him, perhaps as part of his trade.
The evidence does not permit me to conclude that the father broke into the mother’s home using locksmith tools; conversely the evidence does not permit me to reject that assertion either.
17 October 2009 event
The next episode was the events of 17 October 2009.
The father’s version is that the parties went to dinner at a restaurant, at the conclusion of which the mother was accusing him of “eying-off” waitresses. The father then suggested that they went out dancing, but the mother refused. The father says that was on the articulated grounds that he was only intending to flirt with other women. At all events the parties went home to the mother’s place. The father says he drove. On the way they called into a service station to purchase two bottles of coke. The father concedes that he thrust the bottles towards the mother who was sitting in the passenger side of the car, and in doing so damaged a speaker in the door of the car. He denied that he threw the bottles at the mother, or had any intention of hurting her or effecting any damage.
The father then says that he went to the mother’s home and fell asleep on the couch in the living room. He says that he awoke when the mother smashed two bottles of alcohol on the tiles near where he was asleep, and was shouting at him. He says that he then tried to collect the broken glass in a dust pan. The police later arrived and took him into custody to the C Town Police Station, until after some hours he was allowed to go, but told not to go anywhere near the mother for 24 hours. He walked the considerable distance from C Town back to his house at Suburb Q, and arranged for a friend to collect his car from the mother’s home. He says that sometime later the mother got in contact with him and apologised for her conduct on the night and they resumed their relationship.
The mother’s version is very different. She says that the father became very angry over dinner and had drunk a lot of alcohol. She says that he was in fact drunk but nonetheless he drove home. Her evidence is that on the way home they did indeed purchase two bottles of coke, and that the father deliberately threw them at her, with one hitting her head and the other breaking the speaker on the passenger side door. She says that on the way from the service station to her house, the father stopped the car near the Suburb R Police Station and told her to get out, but she refused.
In her affidavit she detailed that when they got home, the father started making drinks, but she told him she did not want one, and the father then grabbed a bottle each of Bourbon and Champagne, and threw them on the patio outside, smashing them. She told the father to leave; the father commenced to do so and she attempted to lock him out after he went outside.
She then says that the father punched her bedroom window from outside, shattering it, and cutting his hands. She says eventually the father obtained entry to the home, pushed her down and started punching her head. She recalls feeling pain, and that the father let go of her hair and picked up the cordless house phone and threw it onto the concrete outside, where it smashed. She then attempted to go towards the main bedroom where there was another phone, and had only just dialled 000 and told the operator the address, when the father came up behind her, grabbed the phone out of her hand and smashed it against the wall. She says that police arrived and took the father away. She says that police went and viewed the broken window and broken phones. She says that an ambulance arrived and checked her over, and she then went to bed and slept until late the next day.
Her evidence was that about a week after that incident, when she was in bed one night, the father came to her (then still smashed) bedroom window and said that he was sorry. Her children became involved and she was eventually persuaded to let the father into the house, and said she would think about reconciling with him. She says the following day the father sent flowers to her work, and phoned and texted her, and then came to the house unannounced and took her and her children to dinner. She says that that is how the relationship resumed.
I have already adverted to the quite different version of events that the mother gave to police on the night in question, including that she drove the car back from dinner, did not make any mention of a stop at the Suburb R Police Station, and gave a different account how the father had assaulted her. Moreover the police record notes that the mother told them that the father grabbed her mobile phone (rather than a landline phone) and that the father went to clean up broken glass from the bedroom window, rather than from the bottles.
It seems to me that a key factor in this evening, which both parties seek to downplay, is the extent to which they were intoxicated. Both parties appear to agree that they left the restaurant and arrived at the mother’s home relatively early in the evening, at about 10:30pm. The police involvement appears to have commenced at about 2:20am. That is nearly four hours after the parties arrived home. If one were to simply take paragraph 75 of the mother’s affidavit, one would think that the altercation ensued shortly after they arrived home at about 10:30. To be clear, paragraph 75 reads as follows:
When we got home, he started making drinks and I told him I didn’t want one, and that I just wanted to go to bed. The father then grabbed a bottle of Bourbon and a bottle of Champagne and threw them both on the patio outside and smashed them. I then told him to get his things and get out. At that time I felt scared.
That paragraph is highly misleading at best. It suggests that the father’s smashing of the bottles occurred nigh immediately after the parties arrived home. In cross-examination however, the mother conceded that after they had arrived home the parties had “lots and lots” to drink. I accept that evidence. There is little else the parties would likely have been doing for the four hours, given that both of them had already consumed alcohol earlier in the evening, and they had purchased coke on the way home to enable them to continue to drink alcohol.
It is an unenviable task to determine which of the recollections of two drunken people is the more accurate. Not much can be drawn from the fact that the police chose to take the father away to the watch-house for some hours rather than the mother, although it does perhaps carry with it an inference that they were satisfied that the father had been the perpetrator of some violence.
The only really objective evidence is that on the night two bottles were smashed, and that the mother called police and they attended. Unless there was some perceived risk of violence from the father, there was no reason for the mother to call police. I am therefore persuaded that, in some way which I cannot accurately determine, the father was violent on the night. However I cannot conclude that he assaulted the mother as she alleges, largely because of her inconsistent reporting of those events to the police. Further, the absence of any physical injury to the mother does cause me some concern about either of her versions being correct. However as I say, I am satisfied that the father, and quite possibly the mother, was in some way domestically violent on the night in question.
Mother’s phone call to sister-in-law
The next occasion of alleged family violence was said to be one night in early 2010 when the mother was on the phone to her sister-in-law. She says the father started to throw things around the house and telling her to get off the phone. She eventually concluded the conversation after about an hour and made herself a drink and went outside. At some stage the father came out of the house and started smashing bottles on the patio. The father said something to the effect “that if the mother wasn’t going to talk to him he would go and find someone else to talk to.” The mother became apprehensive and locked herself in her daughter’s bedroom and telephoned her parents. They came and collected her and took her back to their home. The mother says that it was on that occasion that she first told her parents about the 17 October 2009 episode, and she says that in consequence her step-father told the father that “you don’t hit women or children and that if he ever touched [the mother] again, he would make sure [the mother] never went back.”
It appears plain that in fact on an occasion the mother did telephone her parents and asked them to come and collect her from her home, in consequence of her being scared of the father. That much is accepted by the father. Indeed he concedes on that evening he was unhappy that the mother spent so much time speaking to the sister-in-law and did say to her “come on,” by way of suggestion that she should get off the phone. Although annoyed by the length of time that she was on the phone, he denies smashing bottles. However he accepts that the mother called her parents to take her away, but says that the mother was angry at the time. He denied that she had any reason to be scared, but accepts that thereafter he did have a conversation with the mother’s step-father in which he said to the father that there was to be no hitting of women or children, but says that his response was to tell the step-father that he had not hit anybody.
I am satisfied that the father was indeed annoyed that the mother was speaking to her sister-in-law on the telephone, and that he did express his displeasure to such an extent that the mother became fearful of him, and asked her parents to collect her, which they promptly did. It was controlling behaviour, and I accept it caused the mother to become fearful.
Mother’s communication with ex-husband
The next episode relied upon was more general, in that the mother says that the father became annoyed that she was communicating with her ex-husband. The mother particularly identifies that the father’s attitude to her ex-husband changed in about May 2010, when she moved into the father’s home with her children. She says that the father tried to control her relationship with her ex-husband, and was annoyed when, on an occasion, the ex-husband turned up at the father’s house. The father became involved in negotiations between the mother and her ex-husband in relation to their three children. It appears as though the father’s annoyance with the ex-husband culminated with an outburst by the father when he became aware that, whilst he had been away working, the mother had been conversing with her ex-husband. Apparently the outburst occurred either while the parties were shopping at Bunnings, or shortly afterwards.
In his cross-examination on this point, the father accepted that he became angry when he got home from Bunnings, but denied that he was angry in the store. He said that he didn’t care that the mother was speaking to her ex-husband, but wanted answers to his questions about why they were now communicating so well. He denied that he was jealous on the day, but said rather that he was shocked.
On this occasion I do not accept the father’s evidence. I am satisfied that he was indeed quite annoyed and jealous that the mother was having communication with her ex-husband, apparently in a civil and child focussed way. I am satisfied that the father was indeed suspicious that a man with whom the mother had previously been in a domestic relationship, was in regular and civil contact with her. I am further satisfied that the father wanted to control the mother by restricting her communication with her ex-husband.
Beating family dog
There was a further allegation of controlling behaviour by the father, in relation to the family dog. The mother says that the father became frustrated with the dog not wanting to walk with him on the beach, and struck the dog five times with a metal bar. The father denies he so acted, but concedes that he did indeed have a number of builders’ levels, and that on an occasion he did become frustrated with the dog’s failure to walk properly, and did not thereafter walk it. Whilst I am satisfied that the father did indeed become frustrated with the dog’s reluctance to walk, the evidence does not enable me to conclude that the mother is correct in identifying that the father struck the dog five times with a metal bar. As Mr Victoire points out, one would expect that sort of punishment to have conflicted considerable injury upon a dog, and yet apparently the dog suffered no ill effects.
Abuse of children by father
The mother also relies upon several episodes of alleged child abuse. The first is that the father would call Mr J names. The father concedes that on occasion he would playfully call him a “nerd”, but otherwise denied the allegations. The mother further says that the father would put derogatory notes on the children’s walls. More seriously, the mother says that on one occasion Mr J reported that the father had hit him on the head. She also says that Mr J was given a disproportionate burden of chores to do, and, more worryingly, that Mr J had disclosed to her that “the father used to go into the bedroom at night in his boxer shorts and grind into the boy’s genitals, ([Mr J] and [K] shared a room at that time). He told me this was after the child was born. He told me that the father never removed his boxer shorts and that the boys always had pyjamas on.”
Mr J was interviewed by the Family Report writer, Mr D. He recounted that he had a recollection that during one evening meal, he had told his sister that she needed to finish her vegetables, which for some reason prompted the father to go off in a rage at him. He said that the father commenced yelling at first, but then chased him down to his room and punched him in the face. Mr J went on to say that he didn’t see the father being directly violent with anyone else, but there were holes in the walls and smashed things apparent when he and his siblings came back from a week with their father. He made no mention of any sexual abuse to Mr D.
Even though by the time of trial Mr J was an adult, he was not called as a witness. The mother does not claim that she herself saw the father hit Mr J, hence the only evidence is Mr J’s alleged utterances to his mother and his disclosure to Mr D. In all the circumstances I am not persuaded that that the father in fact struck Mr J, however I am persuaded that the father on occasion did become angry, although whether it was at Mr J, or simply in his presence, I cannot determine. I am not persuaded that the father sexually assaulted Mr J or K.
The mother also alleges that the father abused K, by sitting on him and punching him, or grinding his fist into his body. Whilst I am satisfied that the father did engage in a degree of rough horseplay with the boys, I am not persuaded that it should be construed as physical violence.
As regards L, the mother says that the father told her to go to school and say “Merry Christmas, you have syphilis.” The mother also says that the father said to her in relation to her father “next time you see him, tell him from me he is a fuck head.”
Even if these things did occur, and it is unnecessary to determine, they do not comprise abuse of a child.
There is another matter in relation to L, namely that the mother says the father told her “to close her legs because he smelled something fishy.” The father denied doing so, but did say that on occasion he complained that she appeared not to have washed her toes, as they smelled. I am unable to determine whether or not the father did act in relation to L as the mother contends.
Finally it is said that the father has physically abused the child himself, by performing what were described as “nipple cripples” and biting the child’s ear. The father concedes that he would from time to time perform such actions on the child. The first appears to involve the father grabbing one of the child’s nipples and rubbing it vigorously. As to the second, the father conceded that from time to time he would nibble the child’s ear, but denied that he was doing so in a way to cause pain.
The distinct impression I have is that the father is roughly physical when interacting with children, and that his interaction with the child was of that character. I am not satisfied, however, that it comprises child abuse.
Economic control
The mother contended that the father restricted her access to money, however her evidence was very hard to follow in this respect. She appeared to say that she only had access to a credit card linked to the father’s bank account, and not a debit card. However it appears as though in fact she had never sought to use the credit card which she conceded she had, as a debit card.
The father denies that he restricted the mother’s access to funds. The evidence does not enable me to determine this issue.
Evaluation
I am satisfied that from time to time the father became angry and annoyed with the mother. It is likely that on occasion the mother also became angry and annoyed with the father. It is clear that alcohol played a role in both parties’ behaviour from time to time.
I am satisfied that the father does tend to engage in controlling behaviours with current or former domestic partners. For instance I am satisfied that the father sought to restrict the mother’s communication with her ex-husband, and that he was jealous of that relationship when he realised it was a civil one. Such behaviour is family violence, as defined in s 4AB of the Act, in that the purpose of such behaviour was to control the mother.
I am further satisfied that on occasions there has been some species of physical violence between these parties, although the state of the evidence, and particularly the fact that one, or both, parties was probably under the influence of alcohol at the time, makes it impossible to determine the precise events in question, or who was the main perpetrator.
I am not satisfied that the father sought to economically control the mother.
I am not satisfied that the father has abused either the child the subject of these proceedings, or any of the mother’s three children to her earlier marriage.
RISK POSED BY FATHER TO CHILD
It was said that the risk the father poses to the child was both physical and emotional. It was physical in the sense that it was said the father had physically abused the child in the ways already outlined, and had abused other children in the ways previously discussed. However as has been seen, I am not satisfied that in fact the father has engaged in abuse of a child, and the material does not otherwise satisfy me that the father poses any form of real risk of physical harm to him. Absent being so satisfied, I assess the risk of him physically abusing the child in the future as very low. Although the consequences of any such abuse may be significant, the fact that the prospect of the father so acting is slight, means that the risk is acceptable.
The second risk the father was said to pose was one of emotional harm from the his controlling behaviour (which comprises family violence). As has been seen, I am satisfied that the father does indeed engage in controlling behaviour in domestic situations. I am further satisfied that this is not restricted to the mother, but was a characteristic of at least his post-separation relationship with his ex-wife. Further, I am satisfied that from time to time the father does indeed engage in threatening conduct with a view to coercing people to his will.
However I am also satisfied that the father does not have any real insight into such behaviour. I accept that the father likely operates from a position of male entitlement, and does not identify that there is anything untoward in using such means to coerce others to his will. Without effective intervention, he is therefore likely to continue to so act. However the likelihood that such conduct will effect harm on the child is difficult to predict, and further, the kind of harm and its gravity, is also hard to identify with precision. Hence in assessing the risk of harm to the child from the father’s likely future controlling behaviour, it is not possible to conclude that such a risk is unacceptable. Certainly I am far from satisfied that the risk is of such a magnitude that the father should forfeit any opportunity for a relationship with the child. On the other hand, the risk is sufficiently real that the child should be protected from it to the extent that orders may be fashioned to mitigate the risk.
WOULD THE CHILD BENEFIT FROM A MEANINGFUL RELATIONSHIP WITH THE FATHER?
There can be little doubt that the child presently enjoys spending time with his father during the supervised visits. The Contact Centre notes are replete with examples of the child being excited to spend time with the father, and plainly enjoying doing so.
Leaving aside his controlling behaviour, there is nothing in the father’s life which suggests that the child would not benefit from a relationship with him. Certainly Dr N was of the view that there was nothing psychologically disqualifying in the father’s presentation as assessed by him, and indeed in oral evidence, was emphatic that the child absolutely would obtain a benefit from a meaningful relationship with the father. I accept that evidence.
WHAT RISK DOES MOTHER POSE TO THE CHILD?
The mother was not said to pose any physical risk to the child, but rather the argument was that the child appears to have identified that the mother believes the father is an unsatisfactory person, with whom the child should not have a relationship. In evidence were Contact Centre notes in which the child has expressed that his experience of the father is different from what the mother had led him to believe he would find. Perhaps most telling are the Contact Centre notes for 30 March 2014[12] where it is recorded that the child said to the father “you are a nice daddy! I tell mummy you are a nice daddy.” Similarly on 25 May 2014[13] the child said to staff “daddy is not a yucky daddy today” and repeated “sometimes he hurts people.”
[12]Tender bundle p 13.
[13]Tender bundle p 15.
Whilst the mother denied that she had said this directly to the child, she did concede that the child may well have overheard her conversations with others in which she denigrates the father. Whilst I have some doubt as to whether it is only from overhearing the mother that the child has formed these views of the father, whatever be the source, plainly he has formed them. However his experience of the father is quite contrary to them, as is obvious from the Contact Centre notes.
It is clear that the mother is fearful of the father, and that she does not think that the child should experience a meaningful relationship with him. Moreover, when asked how she might facilitate a relationship between the child and the father if the court ordered that the relationship continue, she found it difficult to articulate any positive action.
Mr D was of the view that the mother has not resolved a number of the aspects of the breakdown of her relationship with the father, and said that she needed “significant and ongoing professional support” to make a recovery to full functioning. I accept that evidence. Throughout the court proceedings the mother was regularly distressed and crying, even when she was not in the witness box. It appeared to me that she indeed was suffering some considerable emotional turmoil and distress, most noticeably when she was being questioned on the assumption that the child would continue to have a relationship with the father.
However I am far from satisfied that the mother is wholly incapable of supporting a relationship between the father and the child, at least with appropriate professional assistance. Moreover, in any event, no party sought that the child should live with the father on the basis that the mother would alienate the child from the father.
BENEFITS OF MOVE TO BRISBANE
The mother does not point to any increase in her capacity to parent the child likely flowing from relocation, nor does she contend that if required to remain in C Town, her parenting capacity will be adversely affected. There is no evidence of any likely substantial improvement in the mother’s financial position if she were to relocate. I can identify no benefits likely to accrue by virtue of the move.
SECTION 60CC CONSIDERATIONS
It will be appreciated that in the foregoing discussion of the issues I have addressed the primary considerations and many of the additional considerations. However the following comments are also pertinent.
The child is too young to express any views.
The mother has never sought to have the father assessed for child support, but on the other hand, the father has never volunteered to pay any. In his evidence he did say that each week he had been putting aside cash for the child’s costs, which presently totalled about $2,000.00. However plainly the mother has been the sole provider for the child to date.
I have discussed family violence and family violence orders above. However I should make it plain that none of the family violence orders that have ever applied have been made other than (it seems) without admission by the father, and hence the inferences which I can draw from them are limited.
Plainly it would be preferable to make an order which would bring these proceedings to an end, but as shall be seen, other than the mother’s proposed orders, that may not be practically possible in this case.
PARENTAL RESPONSIBILITY
The father concedes that the mother should have sole parental responsibility, with the exception that he would like the child to go to a Christian school. In her evidence the mother said that she would be prepared to consider that, on the assumption that the father paid any fees involved.
I am satisfied that there are reasonable grounds to believe that there has been family violence, and hence the presumption of equal shared parental responsibility does not apply. In any event, the parties have now not communicated for some years, and the mother is plainly in fear of the father. In those circumstances, any attempt at negotiation between these parties would be unworkable, and not in the best interests of the child.
I am satisfied that there should be an order that the mother has sole parental responsibility for the child. I am not satisfied that the selection of the child’s school should require a joint decision, but rather educational issues should remain within the mother’s sole parental responsibility.
WITH WHOM SHOULD THE CHILD LIVE
The father concedes that the child should live with the mother. The child has always lived with her since birth, and in any event, the father’s present living arrangements appear somewhat fluid, in that he has a 21 year old partner with whom he has been living now for some four or five months, and is shortly to be joined by his 17 year old son.
I am satisfied that the child’s best interests lie in continuing to live with the mother.
TIME AND COMMUNICATION WITH FATHER
Overview
The mother says that the father should cease all contact with the child. The father and the Independent Children's Lawyer contend that the present monthly supervised time should increase to fortnightly forthwith, and that the father should be required to attend therapeutic counselling, until the counsellor is of the opinion that the father has achieved sufficient benefit from that such that he can be said to have successfully completed it. Upon that event (accepting that it may not occur) it is said that the time which the father spends with the child should proceed to unsupervised time, ultimately culminating in an eight hour block each alternate Saturday, save that changeovers should continue to occur at the Contact Centre. However the orders proposed by the father and Independent Children's Lawyer do not then progress to any overnight time, but rather require the parties to engage in a Child Dispute Conference to see whether or not there can be agreement as to overnight time, and in the event that no such agreement can be reached, that the father have liberty to apply to renew his application to move to overnight time.
I raised with counsel for the Independent Children's Lawyer and father that, in reality, unless agreement in relation to overnight time could be had, those orders might prove to really be interim in nature and not final. Moreover, as counsel for the mother identified, in the event that the father did not ever “successfully complete” his therapeutic counselling, the child may only ever have supervised time with the father, effectively on a final basis. On that basis the mother argued that her orders were the only proposal which the court could confidently make effecting a final outcome of the proceedings.
No contact or supervised time?
I am not persuaded that the father presents an unacceptable risk of physical or emotional harm to the child, although I am satisfied that he does present some risk of emotional harm by virtue of his controlling behaviour. There are means of sufficiently mitigating that risk, by requiring the father to engage in therapeutic counselling of the kind recommended by Mr D, and until he has “successfully completed” that counselling, to require his time to continue to be supervised. However unless and until he does successfully complete that therapy, I am satisfied that his time with the child should continue to have the benefit of supervision. I should say that indeed the Contact Centre reports do suggest that the father himself has derived some assistance from the intervention and suggestions of Contact Centre workers from time to time.
I should also address the prospect that the supervision may be long lasting if the father does not obtain insight into, and modify his concerning behaviours to the point where his therapist believes that such counselling has been successful. The Full Court has regularly observed that open ended supervision with no goal attached to it should not ordinarily be ordered: see Slater & Light (2013) 48 FamLR 573 and Moose & Moose (2008) FLC 93-375.
However here there plainly is an intended goal, namely the successful conclusion of counselling, such that the risk presently attached to the father is adequately mitigated. The prospect that the goal may not in fact be reached is insufficient to persuade me that the proposed order for supervision should not be made.
Unsupervised time – final or interim
Mr D was strongly of the view that, if at all possible, final rather than interim orders should be made. No doubt that was motivated by him identifying that these parties need to move out of the litigious phase, and into a more co-operative phase, of parenting. I accept that evidence. I am satisfied that if interim orders only were made, it is likely that both parties would continue to conduct themselves with at least one eye on strategic considerations for the resumed trial of the proceedings. That would be unfortunate, in that both parties should be firmly focussed upon the welfare of the child, rather than their own agendas.
The difficulty with final orders however is that how long it will take the father to successfully complete his therapeutic counselling is unknown, and hence the assessment of the risk which the father then poses to the child at that time cannot be presently undertaken with any real degree of certainty. The advantage of interim orders therefore would be that the court would again, in the future, be required to undertake a risk assessment in relation to the father, rather than now prospectively determining that the risk the father poses at that time in the future is sufficiently mitigated by him only successfully completing the course of counselling.
Although not without some hesitation, I am indeed persuaded that final orders should be made, and that they should (potentially) culminate in the eight hour period each alternate Saturday which the orders contended for by the father and Independent Children's Lawyer contemplate.
Whilst those orders have the disadvantage that the parties will be obliged to engage in a Child Dispute Conference with a view to moving to overnight time, at least the prospect of future litigation is simply a prospect, rather than a certainty, which would be the case in the event that only interim orders were made.
I am therefore satisfied that there should be final orders, and I am further satisfied that the orders sought by the Independent Children's Lawyer and father, potentially progressing to an eight hour block of unsupervised time each alternate Saturday, are in the child’s best interests.
RELOCATION
The mother sought orders permitting her to relocate with the child to Brisbane at the end of 2016. Although she did not abandon this part of her case, it was ultimately not pressed with any fervour. No doubt that was because it was correctly perceived as being a very weak case.
The mother’s main historical support has been from her mother and step-father. They both live in C Town. Although her father and some extended family members also live in Brisbane, they have not been major figures of support in the mother’s life.
In discussing the issues I have noted that the mother does not assert that relocation would improve her parenting capacity.
Moreover, there is no detail as to her proposed or likely living arrangements in Brisbane.
Further, as has been seen, whilst I am satisfied that the father’s controlling behaviours do pose some risk to the child, that risk can be sufficiently mitigated by, initially, supervision, and then by progressing to unsupervised time once the father has successfully engaged with a therapist to help him gain insight into, and learn strategies to modify, that behaviour. Certainly the risk that he poses is not of the kind that his relationship with the child should be terminated.
However in all probability that would be the effect of the mother relocating. Even accepting that by the time of the mother’s relocation the father may be spending unsupervised time with the child, expressly there will be no orders for overnight time then operative (unless the parties have agreed them or the father has re-commenced proceedings). For the child to spend time with the father in C Town would require him (and likely the mother too) to travel from Brisbane. If the time were to be in Brisbane, not only would the father have to travel there, but also he would need to obtain a suitable venue at which he could spend time with the child. Even accepting the father is self-employed and has a reasonable income, it could not seriously be thought he could afford the expense of such travel on a fortnightly basis, and hence inevitably such time could not be enjoyed on anything like the regularity it could be undertaken in C Town. Therefore the child’s rights to maintain personal relations and direct contact with his father on a regular basis would be adversely affected, and likewise the prospect of him enjoying, or obtaining benefit from a meaningful relationship with his father, would be imperilled. That would not be in the child’s best interests.
There will not be an order permitting the mother to relocate to Brisbane.
OTHER ORDERS
The father and Independent Children's Lawyer proposed that there should be an order that a family consultant be appointed under s 65L to assist the parties with compliance with these orders. The father contended that such an appointment should be made forthwith; the Independent Children's Lawyer contended that the appointment should only commence if and when the father’s time with the child ceases to be supervised. I am satisfied indeed that the 65L appointment should only be commence at that time, but that the Independent Children's Lawyer should remain engaged in the proceedings until that point – if it is ever reached – or at least a time at which that point is likely to be reached. I assess that to be within 12 months of these orders. If at that time the father’s time with the child remains supervised, then there will be neither an Independent Children's Lawyer, nor s 65L assistance, but continued public expense if the father has not successfully obtained therapeutic assistance by then is not justifiable.
I am otherwise satisfied that the orders proposed by the father and the Independent Children's Lawyer are in the child’s best interests, and will make them.
CONCLUSION
For those reasons there will be orders as set out at the commencement of this judgment.
I certify that the preceding one hundred and five (155) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 24 November 2015.
Associate:
Date: 24 November 2015
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Remedies
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Costs
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Appeal
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