Redshaw and Redshaw

[2012] FamCA 868

FAMILY COURT OF AUSTRALIA

REDSHAW & REDSHAW [2012] FamCA 868

FAMILY LAW – CHILDREN – with whom a child lives – with whom a child spends time – allegations of sexual abuse – whether father’s time with the children should be supervised – allegations of family violence – orders that child live with the mother - orders that father spend no time with the child – orders that father communicate with the child in writing.

FAMILY LAW – CHILDREN – parental responsibility - presumption of equal shared parental responsibility does not apply due to unacceptable risk – also not in the best interests of the child – mother to have sole parental responsibility for the child.

Family Law Act 1975 (Cth) ss 60B(1), 60B(2), 60CC, 61DA and 61DA(2)

MRR v GR [2010] HCA 4
McCall & Clark (2009) FLC 93-405

APPLICANT: Mr Redshaw

RESPONDENT: Ms Redshaw

INDEPENDENT CHILDREN’S LAWYER: Mr Brett

FILE NUMBER: LNC 444 of 2011

DATE DELIVERED: 31 August 2012

PLACE DELIVERED: Launceston

PLACE HEARD: Launceston

JUDGMENT OF: Benjamin J

HEARING DATE: 29, 30 & 31 August 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Gibson

SOLICITOR FOR THE APPLICANT: Charmaine Gibson

COUNSEL FOR THE RESPONDENT: Mr McVeity

SOLICITOR FOR THE RESPONDENT: Bishops

COUNSEL FOR THE INDEPENDENT

CHILDREN’S LAWYER

Mr Briffa

SOLICITOR FOR THE INDEPENDENT

CHILDREN’S LAWYER

Legal Aid Commission of Tasmania

Orders

Children

1. All previous parenting orders in respect of S (‘the child’) born April 2005 be discharged.

2. BY CONSENT the child shall live with Ms Redshaw (‘the mother’).

3. The mother shall have sole parental responsibility for the child.

4. BY CONSENT the mother shall promptly keep Mr Redshaw (‘the father’) informed of any major issues in relation to the child’s education, health, welfare and development; including forwarding to the father annual school photographs of the child, copies of the child’s school reports, newsletters

5. The father shall be entitled to have direct communication with the child’s schools and teachers to keep him appraised of the child’s education.

6. BY CONSENT the father and members of his family are permitted to forward to the child letters, cards and presents (including for birthdays, Fathers Day, Christmas, Easter etc).  The mother is permitted to read and examine all such material and is entitled (on reasonable grounds) to withhold material from the child provided she informs the sender of the reasons in writing within a prompt period of time.  The mother shall otherwise promptly give such material to the child.  The mother shall forward to the father and/or members of his family any letters, cards or drawings the child wishes to forward to the father and/or members of his family.

7. The father shall not spend any time with or further communicate with the child except as agreed between the parties or otherwise as ordered by a court exercising jurisdiction under the Family Law Act 1975 (Cth).

8. Neither party shall denigrate the other party or members of the other party’s family to the child or in the presence of the child, nor allow others to do so.

9. The parties are restrained by injunction from providing or informing the child of any of the affidavits, reports, evidence or reasons in respect of these proceedings or permitting any other person to do so, without the leave of the Court.

10. The mother shall within twelve (12) months enrol in and complete a post parenting course approved by the Independent Children’s Lawyer in respect of the need not to demonise, belittle or demean the father to the child.

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

12. The appointment of the Independent Children’s Lawyer shall be terminated twenty eight days (28) following the date of this order.

Property

1. The property proceedings shall be listed before a Registrar of this Court for a Conciliation Conference in Launceston at 9.00 am on 4 December 2012 and the father is given leave to appear by telephone.  

2. In the event the property proceedings are not resolved the Registrar should make directions for trial including the filing of affidavits and after the filing of affidavits transfer the property proceedings to the Federal Magistrates Court.

IT IS CERTIFIED

1. Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Redshaw & Redshaw 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 LAUNCESTON

FILE NUMBER: LNC 444 of 2011

Mr Redshaw

Applicant

And

Ms Redshaw

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

INTRODUCTION

1. I commence these reasons by acknowledging to the parties the difficulties of this case.  These are often the most difficult of cases because there are issues of fact which I have to decide and I need to make findings to properly determine these proceedings.  In making this decision, I may deprive a child of a loving and caring parent, or I may expose a child to the risk of abuse, neglect or violence.  That is the very issue which I have been asked to determine today. 

2. These are proceedings relating to the parenting arrangements for S (‘the child’).  Mr Redshaw is the child’s father (‘the father’) and he has applied to this Court for orders that he have equal shared parental responsibility with the mother for the child, that the child live with the mother and spend supervised time with him.  It is clear that the father hopes that this will lead at some time into the future to the child spending unsupervised time with him and a relationship either being improved or created in those circumstances.  In her submissions, counsel for the father does not strongly press the question of equal shared parental responsibility and says that, at this stage, what the father seeks is that he spend supervised time with the child about four times a year as recommended by the single expert Mr D. 

3. The mother seeks orders that the child lives with her and spends no time with the father.  She also seeks orders for sole parental responsibility for the child.

4. There are some areas to which the parties are in agreement and I will note that at this time.  Firstly, the parties agree, and as does the Independent Children’s Lawyer, that the child should primarily live with the mother.  Secondly, that if the mother’s application for sole parental responsibility is successful, then the mother must keep the father informed of any major issues in relation to the child’s education, health, welfare and development including forwarding to the father details of the child’s education, photographs and that the father be entitled to have direct communication with the child’s school and teachers to keep himself appraised as to the child’s education. 

5. There is also agreement between the parties that the father and members of his family be permitted to forward letters, cards and presents to the child and that the mother be permitted to read that material but otherwise forward it to the child.  I intend to make an order that if the mother decides that any material ought not to be given to the child that firstly, she has to act reasonably and, secondly, she would be obliged to write to the sender of that material and give reasons as to why it was not provided to the child.  I also intend to make orders, as it fits in with this, that should the child wish to write, send letters or cards or presents to the father or to members of his family the mother will promptly forward that material to the father. 

6. It is also not in issue, it seems to me, that there ought to be an order that the parties not denigrate the other party or member of the other party’s family.  The Independent Children’s Lawyer submits that this is a case where the child should spend supervised time, four times per year, with the father.  He also submits that the mother and father should attend counselling or post-parenting courses. 

7. The issues, therefore, left for me to determine are whether the child should spend supervised time with the father or not and the question of parental responsibility.  There are also some other minor issues to which I alluded during the course of the hearing in relation to an injunction restraining the parties from providing to the child any evidence, affidavits, the reasons or material, which are the subject of these proceedings.  There were no submissions contrary to that and I propose to make that order. 

THE ISSUES

1. The issues in dispute appear, therefore, to be:-

   (a)parental responsibility,

   (b)whether the child has been sexually abused, or whether there is an unacceptable risk of the child being sexually abused or exposed to neglect, violence into the future, the nature of the relationship between the child and the father, and

   (c)the impact of the child spending time with the father on the mother. 

BACKGROUND

1. The father is a professional who works in New South Wales.  He has been working in that particular position for two years.  Prior to that he worked in Victoria for about one year and prior to that he worked as a teacher overseas for a number of years.  He has an extensive curriculum vitae which is set out in his affidavit.  He is 42 years of age. 

2. The mother is aged 37.  She is in a new relationship or is commencing a new relationship. 

3. There is one child of the party’s relationship which is the only child of either party.  The parents commenced their relationship in 1999 and married in Western Australia in 2001.  Following their marriage, the parties lived with the child’s maternal grandparents in Western Australia and then subsequently the mother moved into her own home, and I will deal with the events a bit later in these reasons.  It is the mother’s case that she did not wish to live with her parents and wanted to be with the father in their own home, prior to the birth of the child, but they continued to live in this home from the birth of the child for some time. 

4. Not much really rests on the differing views of the relationship of the parties prior to the birth of the child except that it was not a particularly happy relationship, and the impact of living with the mother’s parents was deleterious to that relationship and was, in various ways, opposed by each of the parties.

5. The child was born in 2005.  In early 2006 when the child was about nine or 10 months old the father took employment overseas.  He remained in that employment until the end of 2009.  The father travelled back to the home in Western Australia at the end of 2006 for Christmas, and otherwise appeared to travel back in the mid-year break, which seemed to be consistent with the summer break in the northern hemisphere, and spent limited time with the mother and the child.  Those periods of time appeared to be about seven weeks

6. In 2007 the mother and maternal grandparents relocated from Western Australia to Tasmania.   The mother lived with her parents in Tasmania until about 2009 when she moved into a home which she built on land in Tasmania

7. In January 2010, the father returned from overseas and commenced working in Victoria.  He spent the March/April, June/July and the September/October holiday periods, which were about two weeks each, at the party’s home in Tasmania.  After the father departed the home in Tasmania in early October 2010, he was sent a letter by the mother’s solicitors saying that the marriage was at an end and he was notified of the mother’s allegation that he had sexually abused the child.  The father was interviewed by the police in relation to the allegations of sexual abuse and in 2011 these proceedings were commenced in the Family Court by the father. 

8. The father returned to Tasmania in 2010 and took occupation of the former matrimonial home and the mother and child moved out.  The father’s occupation of the home continued until late December 2010 when the father was served with an interim domestic violence order.  I understand those proceedings have been stood over and are still yet to be determined on a final basis. 

9. When the father was interviewed by the police he made no admissions and made absolute denials of any abuse by him of the child as alleged or at all.  In early 2011, the child was interviewed by the police.  That interview was played in court and the child made a series of serious allegations which were consistent with the material provided by the mother and the child’s maternal grandmother. 

10. A single expert, Mr D (‘the Single Expert’) was appointed and he issued a report in March 2012, and an addendum to that report was provided at the commencement of the hearing.  That material being Exhibits ICL 2 and ICL 3.

11. In these reasons, any statement of fact is to be regarded as a finding of fact unless the contrary is clear from the intentions. 

THE RELEVANT LEGAL PRINCIPLES TO BE APPLIED

1. When determining parenting orders the approach is governed by Part VII of the Family Law Act 1975 (Cth) (‘the Family Law Act’).  The objects of Part VII of the Act and the principles underlying them are set out in ss 60B(1) and (2) which provide:-

   (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).

2. In many ways that section provides the balance that the Court undertakes when making parenting orders that is the entitlement of the child to have both parents being involved in the child’s life in a meaningful way provided it is safe to do so and causes the child no harm. 

3. Subject to the presumption of equal shared parenting under s 61DA of the Act, and any parenting plans, and there are none in this case, the Court exercising jurisdiction under the Family Law Act may make such parenting order as it considers appropriate.  In doing so, the child’s best interests are the paramount consideration in deciding what orders the Court should make and in determining those interests the Court must consider the relevant factors set out in s 60CC of the Act.   

4. If the Court makes an order for equal shared parental responsibility it must then consider the child spending equal time with each parent, and if such order is not made, then the Court must separately consider the child spending significant and substantial time with each parent.  In addition, the Court must consider whether such arrangement would be in the child’s best interests and consider whether any such arrangement is reasonably practicable.  And to that end, I note the comments of the High Court in MRR v GR [2010] HCA 4.

5. These proceedings were commenced before 7 June 2012 and as a consequence many of the amendments to the definition of ‘family violence’ under the Family Law Act and the changes to s 60B and s 66CC which took effect after that date do not apply.  In terms of the allegations of sexual abuse and the well being of the child I have had regard to the various authorities in that area and I have tried to apply them in these reasons. 

THE EVIDENCE

The father

1. The father gave evidence in accordance with his affidavit filed 1 August 2011.  The father denied the allegations asserted by the mother and set out what he was seeking in terms of spending time with the child at least for the time being.  At one stage he was seeking to communicate with the child via Skype although having regard to the evidence of the Single Expert that application was sensibly not pressed by his counsel.  The Single Expert was critical of the father in his observations.  He said at paragraph 59, page 16 of his report that the father’s :-

   …Thought form was somewhat rigid but goal focused and otherwise normal.  Thought content was self-serving but otherwise normal.  ‘He disavowed any personal shortcomings, seemed to value his work over personal relationships, and seemed to lack empathy for the experience of others.  No disorder of perception was noted.  Cognition was in tact.  Insight seemed poor in a man of estimated high average intellectual ability.

2. In many ways the presentation shown by the father to the Single Expert was reflected when he gave evidence.  The father indicated that one of his priorities was to prove his innocence but made it clear that his other priority was to see the child.  The father did not accept the child had a fear of the wombat game neither did he accept that the child saw him as being mean to him.  He does not accept the child’s view.  The father accepted and believed that the child believes that the father was naughty to the child’s mother. 

3. The father’s evidence seemed frank although at times was a little self-serving and understandably subjective.  Whilst he was challenged on his evidence he remained consistent with the evidence he provided in his affidavit and materials he provided to the Single Expert.

The mother

1. The mother gave evidence in accordance with her affidavit filed in these proceedings on 31 May and was cross-examined by counsel for the father and the Independent Children’s Lawyer.  The mother maintained a diary through parts of the relationship which had been made available in these proceedings.  She was cross-examined extensively in relation to that diary. 

2. The mother appeared to give her evidence frankly and concisely.  Her evidence was consistent and generally consistent with her diary and her affidavit.  This Court has recognised that diaries are not affidavits.  They are expressions of feelings, records of perceptions and facts made at a particular time and it has had regard to these circumstances in respect of the mother’s cross-examination.

3. The mother was criticised by counsel for the father in a number of areas.  The first was the delay that had taken for her to conclude that the child had been sexually abused.  The mother said that she found it difficult to accept that the father would hurt the child, despite information being provided to her by her mother and others.  She reluctantly came to that conclusion.  I give her credit for adopting that approach.  She was focussed on the child and protective of the child but she did not leap to the conclusion of sexual abuse.  It took her a while to come to that belief.  The mother now believes rightly or wrongly that the child has been sexually abused and is determined in that belief, and her approach since separation has been based on that belief.  I am satisfied that it is unlikely that this belief will alter into the future.

1. The mother had asked leading questions of the child in relation to the matters of abuse and was criticised for it.  The mother understood the criticism however, it seemed clear from her evidence that it was not done in a malicious or controlling way but in a way to protect the child having regard to her view of the child and the nature of the child’s character in that he had shown some symptoms of Asperger’s syndrome.  I am generally satisfied with her evidence albeit that from time to time it was subjective.

The school teachers

1. Evidence of two of the child’s school teachers was read into the record.  They provide evidence that the child had some trouble socialising at the commencement of school which was consistent with the comments made by the Single Expert, but said that the child was doing well at school, was developing and his education was sound. 

Mr C and Ms U

1. The father relied upon evidence of his brother, Mr C, and his sister, Ms U, who came to visit he and the child shortly after the child was born with other members of the family.  They came at different times.  There was an application by counsel for the mother to have that material struck out which I rejected.  The material provides an indication of a number of things.  Firstly, that the father’s family were interested in the child and remain interested in the child.  That the relationship between the mother and father was not a good relationship.  Their evidence otherwise was not of great assistance and there was some part of it which was hearsay to which I have had no regard.

Ms J

1. Mrs J (‘the maternal grandmother’) gave evidence in accordance with her affidavit filed 31 May 2012.  She was, it seems one of the best witnesses for the father.  She gave evidence of disclosures made by the child and evidence of her suspicions of the father’s alleged sexualised conduct with the child from shortly after the child was born. 

2. To say that the maternal grandmother detested the father is an understatement.  She sees no good in him and it is likely she will not be contained in her criticism of the father in the presence of the child.  She lacks any insight into the impact on the child of her negative comments about the father.  She places no value in the child being a child of the father. 

3. The maternal grandmother describes the mother’s new partner as the child’s ‘new father’.  When I asked how she would address questions raised by the child as to the father when he was older she said she would get out the affidavits and read them to the child.  This is deeply troubling.  As a consequence I have made injunctive orders against the parties as it is not likely that I can make orders against her. 

4. The maternal grandmother gave evidence of a number of events and there is a sense that her evidence was exaggerated and added to.

5. The mother gave evidence of two events where she asserted the father was engaging in sexualised conduct with the child.  The first was when the child was about one or two months old when she saw the father place his hand down the front of the child’s nappy and she approached him about it.  The second was when the child was in a blow up submarine which was full of balls in which the child was playing and the father dived in and was touching the child.  I cannot say whether these assertions are accurate or inaccurate.  What I can say is I have significant doubts about both the nature of them and the extent of them having regard to the general unreliability of the maternal grandmother’s evidence.

6. It is clear that the maternal grandmother encouraged the mother to distrust the father. 

The Single Expert

1. Mr D (‘the Single Expert’) is a psychologist who interviewed the parties and conducted observations on 2 March 2012.  He provided a comprehensive report dated 13 March 2012 which I have alluded to earlier.  His qualifications were not challenged and I accept that he was qualified as an expert to provide the report that he did and to make the conclusions that he has done so from that material.  He observed that the child is now very fearful of the father and that the child believes the father would seek to harm him and sexually abuse him if given the opportunity to do so.

2. The Single Expert also observed that the mother now holds these beliefs with strong conviction.  He said the mother and maternal grandmother are likely to be hyper-vigilant in the future and biased in their perceptions of the father’s behaviour such that any apparent confirming evidence is likely to be augmented and any disconfirming evidence is likely to be discounted.  I accept that evidence.

3. The Single Expert concluded that it was possible that the child was subject to some inappropriate sexualised behaviour by the father and that it is probable that his disclosures have been unintentionally reinforced by the mother.  I will return to the question of sexual abuse a little later in these reasons.  The Single Expert concluded that the risk of sexual abuse to the child, having regard to some tests undertaken, that is, by the father, is low, but there is a low to moderate risk as to physical abuse, and I have referred to the Single Expert's view of the father that he was inflexible, egocentric, lacking in empathy and lacking in insight, as well as the fact that there have been angry outbursts in the past and that this could impact on the relationship between the father and the child into the future.  To that end, I refer to paragraph 111 of the Single Experts report. 

4. The Single Expert concluded that the mother will have trouble shielding the child from her views of the father, and I accept that.  I also accept that it is impossible for the maternal grandmother to shield the child from her views.  It is interesting to note that the Single Expert said the father also seemed no more likely to shield the child from his disregard towards the mother and grandparents and that this would, if he spent time with the child, add to the load.  Such adverse effects are unlikely to change, he says, in the foreseeable future.  Having heard the parties and seen them giving evidence, I agree with those conclusions.  The Single Expert said the only means by which these adverse effects would be prevented would be for the child to spend no time with the father.  It is interesting to note that the father's lack of insight is reflected in the report in terms of the father's initial proposal that the child should live with him and be placed in boarding school fairly promptly.

5. The Single Expert reality tested that with the father, and the father moved a little bit, but not much.  It was indicative of his lack of insight, bearing in mind the lack of relationship between the father and the child, which I will allude to later on.  The Single Expert concluded that the child would not be adversely impacted if he did not spend time with the father.  I accept that evidence.  The fundamental conclusion of the Single Expert was set out in paragraph 118 of his report, that is, that if the father sexually abused the child, then the child should not spend any time with the father.  The second part, I take it to be, although I am not sure that it is clear, that if there is a finding that the father poses a risk of abusing the child, then the child should not spend time with the father.

6. Finally, such is the impact on the child and the mother that even if there was not a finding of unacceptable risk, then it would not be in the child's best interests to spend any time with the father at this present time.  When cross-examined in relation to this, it seemed that the approach of the Single Expert was somewhat ambivalent at times.  He seemed to have reacted to an inquiry made by the Independent Children's Lawyer as to whether there should be some time and fluctuated as to whether there should be time, being the four times a year and not the four times a year.  The Single Expert said that the child would make up his own mind, and if a relationship was to start it was probably better to start in his teens, but then went and said that there is a risk that the child could fantasise about the father, and it would be of value to see the father earlier so he did not fantasise about the father, but, again, said this could cause problems with the child in terms of how the child reacted to seeing the father.

7. The child did see the father with the Single Expert, but it was not sufficient time upon which to make a longitudinal assessment as to the likelihood of an adverse or a positive outcome at this stage.  The Single Expert observed that there was a possibility of some sexualised behaviour occurring between the father and the child, and this was likely to be on more than one occasion.  He said the child was strongly aligned with the mother and strongly estranged from the father.  He said it was not a realistic option to remove the child from the care of the mother.  He said the child was secure in his attachment to the mother, progressing well at school, and that she at all times had been the primary carer of the child.  I agree with this conclusion, having regard to my view that the mother has not been malicious in the steps she has taken to care for and protect the child. 

8. The Single Expert formed the view that there was some symptoms of Asperger's, to which I have alluded to earlier, and gave some evidence as to the indicators in that regard and said that in some respects this reflected some of the personality traits or behavioural traits of the father.  He said that the father's personality was such that he was likely to be non-compliant or not assisted by counselling, but went on to make a suggestion that it could do no harm.  It seemed to me in the light of that evidence an order requiring the father to undertake counselling would be, in my view, a wasted effort.  The Single Expert described the benefit of the child spending time with the father at this time as meagre and said that the recommendations made in his email of 29 August 2012 (Exhibit ICL2) were made in the context of if there was to be time, how it should occur.  As I said, I generally accept the evidence of the Single Expert. 

DISCUSSION

1. The submissions of the Independent Children's Lawyer was that there ought to be an order for sole parental responsibility and that the mother should be required to provide information to the father, and, as I said, that latter aspect is by consent.  I accept that submission and adopt that submission.

2. The presumption of equal shared parental responsibility would not have applied because of the allegations of abuse and violence. However, I have considered equal shared parental responsibility, but in light of the facts and circumstances of this case it is not in the child’s best interests.

3. There was an episode of alleged violence around Australia Day in 2006.  I am, of course, obliged to deal with that.  I have the evidence of the mother which describes the father as being intoxicated and quite violent.  I also have the evidence of the father where he says there was an argument and that his behaviour was in response to violence by the mother to him.  I have the evidence of the maternal grandmother which, as I have said earlier, was somewhat impeached.  I am satisfied that there was an episode of violence at that time and that that episode was substantially as indicated by the mother.  I am also satisfied that the father was intoxicated at that time, and that the father subsequently apologised for his behaviour after being kept away from the mother and the child for that time, and that the child was exposed to that violence at the time. 

4. The mother became concerned about the father's interaction with the child after she was approached by the maternal grandmother in 2005 or 2006.  The mother was particularly concerned about the game the child and father played which was known as the ‘wombat game’.  This game apparently ran from anywhere between one minute to 10 minutes, and the mother said this has to be seen in context, that it was one of the rare interactions the father had with the child when he came back to visit the child.  The mother said that the game was played under a doona between the child and the father, and the mother had seen the father biting the child and asked him to stop.  The mother had tried to keep an eye on the father during the course of this game, and observed that on a number of occasions the father did not have clothes on the lower part of his body when he played this game.  The mother said when she complained to the father, he would often not respond. 

5. The mother said that the child was distressed after the game and on a number of occasions was unable to control his bladder, including on one occasion, at least during the game.  The father said that he played the wombat game, but that it was an innocent game that he played with the child.  I generally accept the mother's description of this game. 

6. The mother says that in 2007 she saw the father with his hand in the front of the child's nappy moving around.  She asked him to stop, and it was only after she asked three or four times that he stopped.  The mother was concerned about this behaviour, but did not rationalise that it was associated with improper or sexualised behaviour.  I generally accept the mother's evidence in relation to what she observed at that time.

7. The mother, after that time, became hyper-vigilant.  And, in 2009, when the child suffered from constipation, the mother formed the view that it had arisen as a result of abuse by the father.  She says that at the time she did not take it seriously, but should have taken it seriously.  The child was required to undergo blood tests and other tests, and as a result the child believed the blood test arose as a consequence of the father making him sick.  I am not satisfied that the mother induced the child to this belief, but I think it is likely that the maternal grandmother may have assisted the child to form that view, which is now very much part of the child’s view of the father.

8. In November 2010, the child made disclosures to the mother.  I have not accepted the evidence of the maternal grandmother in relation to those disclosures, but I am satisfied that the mother has reported as best as she is able to the disclosures that were made to her.  Some of those disclosures were made by way of response to leading questions. 

SECTION 60CC FACTORS

Section 60CC(2)(a) The benefit to the child of having a meaningful relationship with both of the child's parents; and

1. The Full Court in McCall & Clark (2009) FLC 93-405 set out the law in respect of a meaningful relationship and said at paragraphs 119 and 122:-

   We conclude that the preferred interpretation of benefit to a child of a meaningful relationship in s 60CC(2)(a) is “the prospective approach” although, depending upon factual circumstances, the present relationship approach may also be relevant.  We note however that s 60CC(3)(b) requires a court to explore existing relationships between a child and his or her parents and other persons, including grandparents.  If the interpretation we have set out in (a) above were exclusively applied, that interpretation would limit a court making appropriate orders in circumstances where a significant relationship had not been established between a child and a parent at the date of trial.

   …

   In reaching these conclusions, we also consider the legislation requires a court to focus on the benefit to the child of a meaningful or significant relationship.  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.

2. In 2006, when the child was but nine or 10 months old, the father moved overseas and had a limited relationship with the child over those formative years.  I do not criticise the father or the mother for these arrangements.  It is not for me to tell parties how to run their lives.  But the consequence of those arrangements, and the poor relationship between the parties of which both parties were aware, was that there was and is no meaningful relationship between this child and the father.  The orders that the father and the Independent Children’s Lawyer seek will not create a meaningful relationship between the child and the father.  It will simply create a light on the porch so that the child will know who is father is and where his father is. 

3. The child has thrived in the care of the mother, but for the issues of the alleged abuse which I will soon be addressing.  Counsel for the mother said that I should focus on that aspect and I generally accept his submissions in that regard.  Generally, this Court deals with the need to preserve an existing relationship.  In this case, there is no realistic relationship existing, and any fragments of that relationship which may have survived up to late 2010 have now been diminished by the events and the beliefs of the child following that time.  So, therefore, the time the child spends with the father cannot be seen to create a relationship.  The benefit it seems from the evidence of the Single Expert, as I said, is to know the father and, perhaps, to prevent the child from fantasising about the father.

Section 60CC(2)(b) The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

1. I then need to address the need to protect the child from physical or psychological harm or from being subjected to or exposed to abuse, neglect and family violence.  I make it clear at this stage I make no formal findings that the child was sexually abused by the father.  I make it clear that I make no findings that the child was not sexually abused by the father.  I have the evidence of the father which was not effectively impeached.  I also have the evidence of the mother which was not effectively impeached.  My task is to consider the risk to the child and the consequences of that risk.  I have to do it in a broader sense, so that these proceedings are not caught up in a “catch 22” situation. 

2. The father is seeking supervised time and there is virtually no risk of the father being an unacceptable risk of sexual abuse to the child in supervised circumstances.  It just couldn’t happen or it’s unlikely to happen.  But had the father have been seeking unsupervised time, I would have concluded having regard to all of the evidence that was before me that there was a risk into the future.  I say this having regard to the views, the somewhat contrary views of the Single Expert, that the father may have engaged in some sexualised behaviour in the past, but was not a risk in the future.  He is not a risk because what was suggested was not unsupervised time. 

3. But there are broader risks to which I have to have regard in this matter as well.  Firstly, the impact on this child.  This child does not know his father and has not known his father for all of his life, except in very limited times in the first 10 months of his life, Christmas 2006, seven weeks in 2007, 2008, 2009 and some limited time in 2010, and no time of any meaningful significance since that time.  The child has a fear of his father.  He expresses those fears forcefully.  Whether those fears are soundly based or not, they are fears that the child has. 

4. In addition, there is the impact on the mother.  The mother was frank and said she would comply with the orders that this Court made.  When asked if she would cope, she couldn’t answer.  It is clear she will have enormous difficulties coping and I have to weigh up the benefit of that having regard to the benefit to the child.  If the child wants a relationship with the father, he can consider doing so in his teens, as suggested by the Single Expert, but the dangers at the present time are far greater than the benefits to which the Single Expert alluded.

Section 60CC(3)(a); Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;

1. The child has expressed his views that he has a fear of the father and believes he’s a bad person.  That does not mean the father is a bad person, but that’s the child’s fear.  The child has a fear that the father will harm him.

Section 60CC(3)(b) The nature of the relationship of the child with:

(i) each of the child’s parents; and

(ii) other persons (including any grandparent or other relative of the child);

1. In terms of the relationship of the child with each of the parents, the mother has been and continues to be the primary carer of the child over the whole of his life.  The father was critical of the mother in that he described her as being depressed and gave a very colourful description of how she coped during their relationship.  I have some concerns about his evidence in that regard for it doesn’t make sense, as counsel for the mother suggested that if the mother was that bad, was suicidal and locking herself away, why would the father go away and leave the child in her unsupervised care with grandparents who he had grave concerns about as well.  It doesn’t make sense.  There is, in my view, an element of exaggeration. 

2. The mother’s evidence in the witness box was thoughtful, considered and child‑focused.  As I said, there is virtually no relationship between the child and the father except one of fear and a belief that the father had sexually abused him. 

Section 60CC(3)(c) the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent.

1. Neither the mother nor the father would be willing to facilitate and encourage a close continuing relationship between the child and the other parent.  That would be needed by the mother to make the time work and, whilst the mother would comply with my orders, of that I have no doubt; I am not convinced that she would facilitate and encourage it.  She would go there, comply in form, but not in a broader way.

2. The father is unlikely to contain his approach to the mother, and I note the evidence to which I have previously alluded to with regard to the Single Expert.  As I said, the mother will have difficulty in coping with such order and that may impact upon her ability to parent.

Section 60CC(3)(d) The likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:

(i)either of his or her parents; or

(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

1. The effect of the changes could be profound, particularly with the child and the mother, even if the child were only spending time with the father four times per year. 

Section 60CC(3)(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;

1. There is the question of practical difficulty and expense, but clearly the father can meet that cost.  However, the distance will impact on the development of a relationship between the father and the child and, as I have said elsewhere, I don’t believe a relationship can be put in place.

Section 60CC(3)(f) the capacity of:

(i)each of the child's parents; and

(ii)any other person (including any grandparent or other relative of the child);

to provide for the needs of the child, including emotional and intellectual needs;

1. The mother has shown a capacity to parent.  The father has in many ways not shown any capacity to parent, although I do note that he is involved in the education of children in a school so there must be some capacities there.  The Single Expert was scathing of the father’s ability in that respect.  The mother is able to meet the child’s emotional and intellectual needs, subject to her views of the father, which having regard to the approach and to the information provided to her and whether that information is accurate or not accurate, is not entirely unreasonable. 

Section 60CC(3)(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;

1. I have had regard to the child’s German background and Dutch background, for that matter.  In their case outline counsel for the father described it as ‘not relevant’.  It must be relevant and, in the circumstances, can only be dealt with by the letters, cards and presents from the broader family in Germany. 

Section 60CC(3)(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;

1. Submissions were made by the counsel for the father that the mother has failed to shield the child from the negative views and the father had shown a strong attitude to parental responsibility.  The first of those submissions I accept; the second I do not accept for reasons to which I have alluded earlier. 

Section 60CC(3)(j) any family violence involving the child or a member of the child’s family;

1. In terms of family violence, I refer to the incident which occurred some years ago.  It was an isolated incident for which the father apologised.  There were allegations of broader controlling behaviour, which weren’t the subject of significant debate or evidence in these proceedings. 

2. In his case summary[1] Counsel for the Independent Children’s Lawyer said:

   there are numerous allegations of sexual abuse of [the child] by his father.  There is alleged financially controlling behaviour of the father, verbal abuse by the father to [the child] and the mother and one alleged physical assault to the mother by the father.

   [1] Filed the 13 July 2012.

3. I generally accept and adopt this submission.

4. In the mother’s case summary the issue of family violence was not addressed in detail other than to say that an interim family violence order is currently in place. However in her affidavit filed 31 May 2012 she makes a number of allegations including at paragraph 42 where she says:-

   During the relationship [the child] witnessed a number of arguments between [the father] and I.  [The father] was quite often verbally abusive to both [the child] and I. [The father] would always gloat and look very happy with himself when he made me upset as a result of his arguments.

5. At paragraph 43 she says:

   When [the father] drinks he becomes more argumentative and aggressive.

6. At paragraph 44 she says:-

   After [the child] made disclosures to me indicating sexual abuse I sought professional advice, guidance and support for him.

7. At paragraph 56 she says:-

   [The child] has also been subjected to physical abuse by [the father].  On one occasion [the child] was sitting in the car waiting to go to Kindergarten when [the father] got annoyed with him, and slapped him across the face.

8. At paragraph 57 she says:-

   On another occasion [the child] was playing on the floor and climbed on top of [the father], who was lying on the floor.  [The child] tickled [the father’s] feet.  [The father] kicked [the child] in the chest causing him to scream in pain

9. At paragraph 58 she says:-

   [The father] quite often slapped [the child].

10. At paragraph 59 she says:-

    [The child] has also told me that [the father] has hit him in the tummy and scratched his face.

11. The mother was frank in her evidence and whist there may be some scope level of exaggeration in this evidence I am satisfied that it was substantially factually accurate.

Section 60CC(3)(k) any family violence order that applies to the child or a member of the child's family, if:

(i)       the order is a final order; or

(ii)      the making of the order was contested by a person;

1. There is an order in place, and I have had regard to that interim order and the facts underlying that order, to which I have alluded earlier.

2. The Independent Children’s Lawyer submitted that there is an interim family violence order dated 22 December 2010 (to remain in force until revocation).  At annexure “A” of the mother’s affidavit there is a copy of the interim order and it appears the matter was adjourned until 7 January 2011.  The mother deposes at paragraph 6 of her affidavit that it was still in place. I accept that evidence.

Section 60CC(4)     Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child's parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child's parents:

(a)has taken, or failed to take, the opportunity:

(i) to participate in making decisions about major long‑term issues in relation to the child; and

(ii)to spend time with the child; and

(iii)to communicate with the child; and

(b)has facilitated, or failed to facilitate, the other parent:

(i)participating in making decisions about major long‑term issues in relation to the child; and

(ii)spending time with the child; and

(iii)communicating with the child; and

(c)has fulfilled, or failed to fulfil, the parent's obligation to maintain the child.

1. The father’s involvement in the child throughout his life has been minimal.  Once the father moved to the United Kingdom his contact with the child was only on his annual trip.  When the father returned to Australia to live in January 2010 there were three visits in that final year.  There have not been visits since late 2010 as from the end of 2010 those visits were precluded by the mother declining to facilitate same.

2. I have had regard to what has happened since separation and the high level of conflict and distrust between the parties.  It was suggested that the allegations by the child were fanciful and on some levels they may be, but as I have said, the child believes those allegations and, as I have said elsewhere, I make no findings positive or negative.  It was submitted that the mother would cope with the time.  Of that I am not sure.  Putting time in place as submitted by the Independent Children’s Lawyer and the counsel for the father would involve significant further assessment of the child and, would, in my view, inevitably lead to further litigation.  I am not convinced that that is in the best interests of this child who is otherwise managing reasonably well.

3. Having considered all of those facts and circumstances, it seems to me that face to face time between the father and the child at this stage ought not to be permitted.   I make no finding that the child was sexually abused.  However, given the evidence of the mother and the views of the single expert I am satisfied that there is an unacceptable risk in the future of the child being at risk of abuse in the care of the father.  History is a good indicator of the future.

4. The father played the ‘wombat’ game and declined to change his behaviour (whatever it was) in respect of that game despite the request of the mother.  The maternal grandmother’s evidence is unreliable however the evidence of the mother is that of a careful, thoughtful person who looked for alternatives to the issues raised by the maternal grandmother.   It was only when all of the issues were considered together shortly prior to separation that the mother formed a belief that the child was at risk of sexual abuse in the care of the father.

5. That belief is a genuine belief of the mother and is unlikely to be changed given the way that it arose over so many years.

6. The mother is the primary care of the child there would be a profound impact on her ability to parent the child should the father spend time with the child.

7. The time could, in all of the circumstances, lead to no unsupervised time at least in the short to medium term and likely into the longer term.

8. Thus, I determine that there is an unacceptable risk of the child being abused by the father if in his unsupervised care and, given the nature of the evidence, perhaps even in some supervised care.

I certify that the preceding ninety three (93) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 31 August 2012.

Associate:     

Date:              31 August 2012