RIZZO & GRIEVE
[2014] FCCA 3126
•18 December 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| RIZZO & GRIEVE | [2014] FCCA 3126 |
| Catchwords: FAMILY LAW – Parenting – child’s best interests – family violence – coercive and controlling family violence – impact of family violence on children – court satisfied that the children have suffered serious psychological harm through exposure to, or being the subject of family violence – views of elder children and weight to be given to such views based on lived experience. |
| Legislation: Family Law Act 1975 (Cth), ss.4, 4AB, 60CA, 60CC, 60CC(2A), 61DA, 65DAA, 65DAA(5), 65DAC, 68B |
| Tate & Tate [2000] FamCA 1040 AIF & AMS [1999] HCA 26 Allesch v Maunz (2000) 173 ALR 648 Deacon & Castle [2013] FCCA 691 Harrison & Woollard (1995) FLC 92-598 Re R Children’s Wishes [2000] FamCA 43 |
| Applicant: | MR RIZZO |
| Respondent: | MS GRIEVE |
| File Number: | PAC 1303 of 2013 |
| Judgment of: | Judge Harman |
| Hearing date: | 18 December 2014 |
| Date of Last Submission: | 18 December 2014 |
| Delivered at: | Parramatta |
| Delivered on: | 18 December 2014 |
REPRESENTATION
| No appearance by the Applicant |
| Solicitors for the Respondent: | Ms Schrale of Mcphee Kelshaw |
| Solicitors for the Independent Children’s Lawyer: | Ms Wulf of Benetatos White Solicitors |
ORDERS
Make orders in accordance Exhibit ICL1 attached hereto.
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.
Remove all issues from the list of matters awaiting hearing.
Upon the expiration of the Appeal period and in the event that no appeal is lodged that all exhibits then be returned to the party who tendered same and that all material produced on subpoena be returned to the person or organisation who produced same or securely destroyed.
EXHIBIT ICL1
The mother shall have sole parental responsibility for the children X born (omitted) 1999, Y born (omitted) 2002, and Z born (omitted) 2006.
The children shall live with the mother.
The father shall spend no time with the children.
The father shall have no communication with the children other than in accordance with the following order.
The father may send the children letters, cards, photographs and gifts, four times per year plus on each of the children’s Birthday’s and at Christmas. Such letters shall be sent by ordinary post to an address provided by the mother. Upon receipt the mother may open any items received, and unless she considers the content inappropriate, she shall pass the letters, cards, photographs or gifts to the children.
The father is restrained from approaching, contacting or attempting to approach or contact the mother of the children, except as specifically permitted under the proceeding order. The father is restrained from approaching within 100 metres of each of the children’s schools, the children’s home or the home of the maternal grandparents at (omitted). Except as specifically permitted under the proceeding order, the father is restrained from communicating or attempting to communicate with the children by telephone, by the internet including via email or social media, or through a third person or organisation. This is an order under section 68B of the Family Law Act 1975 for the personal protection of each of the mother and the children, to which the power of arrest without warrant under section 68C of the Family Law Act 1975 attaches.
The father is at liberty to make a further Application to this Court, following completion of an Intensive and Long Term Drug and Alcohol Rehabilitation Program, completion of a Program or individual Counselling in relation to the impact of Family Violence on his children, and demonstration of documentary evidence of abstinence from drugs and alcohol for a period of two years.
IT IS NOTED that publication of this judgment under the pseudonym Rizzo & Grieve is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT AT PARRAMATTA |
PAC 1303 of 2013
| MR RIZZO |
Applicant
And
| MS GRIEVE |
Respondent
REASONS FOR JUDGMENT
These proceedings involve competing parenting Applications with respect to three young people:
X born (omitted) 1999;
Y born (omitted) 2002; and
Z born (omitted) 2006.
The parties to the proceedings are the children’s parents, being their father Mr Rizzo, the Applicant and their mother Ms Grieve, the Respondent.
Due Process
These proceedings have been on foot for a significant period. The matter was commenced by an Application Initiating proceedings filed by Mr Rizzo on 28 March 2013. At the time the proceedings were commenced the parties, through their legal representatives, were in the process of negotiating arrangements. Those negotiations ultimately did not result in resolution.
Both parties were in the process of filing an Application with the Court and had given notice of that intent. Mr Rizzo filed first although, as a consequence of his earlier filing, his material was prepared it would seem, in anticipation of him being the Respondent. Nothing turns upon that. It simply would create for the casual observer some confusion as to the standing of the parties.
Mr Rizzo's Application and Affidavit filed on 28 March 2013 represent the last documents filed by him in these proceedings. That is of some relevance, as the matter was listed today primarily for callover and with the intent of allocating hearing dates.
On 9 July 2014, Orders were made following release of a Part 15 Report to cause the parties to prepare for trial.
Mr Rizzo, as the Applicant, was to file and serve by 3 October 2014. Nothing has been filed by Mr Rizzo.
Ms Grieve, as the Respondent, was to file and serve by close of business, 7 November 2014, which she did.
Mr Rizzo does not appear today.
The proceedings, in accordance with the Orders issued on 9 July 2014, are listed today for “callover”. It was indicated that if material had been filed that hearing dates would be allocated to conclude the proceedings. It was noted that if material was not filed then the party in default would be required to show cause as to why their Application or Response should not be dismissed for want of prosecution and further, why the Application or Response of any compliant party should not then proceed on that day, to be heard and determined on an undefended basis.
It might well be argued by Mr Rizzo or anyone appearing on his behalf, now or on any subsequent occasion that Mr Rizzo was thus not aware that the matter might proceed in his absence today, particularly on a final and undefended basis. However, anyone considering the file would be readily disabused of that notion by reading the Orders made 9 July 2014, which Orders contained the above notation and by reading the Affidavit of Ms Grieve’s attorney, Ms Schrale, sworn 18 December 2014 and filed today.
What is clear from that Affidavit is that Mr Rizzo has been advised both verbally and in writing that Ms Grieve would seek to conclude these proceedings today in the event that he did not appear and did not file material.
Whilst directions for the filing of documents are routinely disregarded by litigants before this Court, (although I pause to add clearly not by Ms Grieve or her attorneys), such “directions” are in fact, Orders of the Court, as was discussed by the Full Court in Tate & Tate [2000] FamCA 1040. They deserve compliance and litigants should be aware that failure to comply carries potentially serious consequences including undefended hearing.
I do not refer to that issue to suggest that this is a punitive response to Mr Rizzo’s failure to file material. It is far more profound than that.
On 9 July 2014 Orders were made to facilitate Mr Rizzo reading the Part 15 Report. The Report had been available for some little time having been completed in March of 2014. On 30 April 2014, the Report was released to the legal representatives for the parties and the Independent Children’s Lawyer. At that time and as a consequence of the concluding paragraphs of the Report, I had made clear to Mr Rizzo’s then attorneys that I wished to adjourn the proceedings so that some inquiry could be made by them to ascertain a person or persons who might be able to provide assistance and support to Mr Rizzo upon reading the Report.
It would be fair to describe that the Report, in the vernacular, would not be “good reading” for Mr Rizzo. It most assuredly does not support his case. That is not an inappropriate description in light of that contained within its 46 pages.
The Part 15 Report writer had offered an opinion as the first recommendation of their Report:
Mr Rizzo is at risk of suicide upon reading this report and/or if he is not able to spend time with his children. As such, the Honourable Court may consider releasing the report in Court and in the presence of a support person for Mr Rizzo.
The recommendations that are then made by the Report support the mother’s position that the children should live with her, that she have sole parental responsibility and that the children are able to receive letters, cards and gifts from their father, subject to certain caveats, but that the children not otherwise interact with him. Recommendations were also made for the father to engage in drug and alcohol and mental health treatment programs.
The Affidavit of Ms Schrale would suggest that the father perhaps has now taken up those recommendations. It is suggested that the father has indicated his immediate intent to enter a rehab program in the (omitted) area of Sydney, having until recently lived in Queensland. The emails which are annexed to Ms Schrale’s Affidavit made clear that:
a)Mr Rizzo had indicated to Ms Grieve’s attorney his intention to enter a rehabilitation program although the specific details of the program were not made known;
b)As he had not filed material and was unlikely to participate in the proceedings, that Ms Grieve would seek to proceed with her Application and have Orders made on a final and undefended basis in the event that Mr Rizzo did not appear, did not file material and/or did not make some contact with Ms Grieve’s attorneys or the Independent Children’s Lawyer as to his intention in the proceedings.
Further emails have been forwarded to Mr Rizzo on a regular basis, including 7 November 2014, at which time the Independent Children’s Lawyer served certain documents upon Mr Rizzo and also confirmed their support of Ms Grieve’s position.
The intention to proceed with the matter on an undefended basis today was spelt out most clearly and authoritatively in an email to the father, 12 November 2014. It set out not only the intent but the basis for and reasons for seeking to proceed with the matter on a final and undefended basis and served upon Mr Rizzo a Minute of Orders that would be sought. Those Orders are not dissimilar to those sought in the initial Response filed by Ms Grieve.
What is clear from the evidence, including the one Affidavit filed in the proceedings by Mr Rizzo, is that Mr Rizzo is presently labouring under a number of disabilities. None of those are suggested to be a criticism of Mr Rizzo. However, he is not in a position, it would seem clear, to engage with these children or these proceedings at this point in his life.
One need turn no further than Mr Rizzo’s solitary Affidavit sworn or affirmed 25 March 2013. The document is brief. However, it was filed in compliance with the Federal Circuit Court Rules 2001, intended to set out sufficient information to identify issues in dispute, rather than the totality of evidence relied upon. What it does make clear however, are a number of issues of great moment, indeed tragedy for Mr Rizzo. These include:
a)As a child, Mr Rizzo was sexually abused. This would appear to have been undisclosed by Mr Rizzo for some significant time and sadly, untreated and unsupported.
b)As a consequence, throughout the marriage difficulties arose. They are spoken to in great detail by Ms Grieve and I will turn to them shortly. However, Mr Rizzo concedes that in the latter part of the relationship he simply was not coping. Regrettably, he apportions some degree of culpability for that to Ms Grieve, suggesting, “I did not realise at the time that Ms Grieve did not know how to help me and that I needed to seek professional help”. I make clear that Ms Grieve is not criticised in any way for “failing to support” Mr Rizzo. I am sure that she did all that was within her power, holding affection for him, to seek to deal with the difficulties that clearly were arising from his past trauma.
c)Immediately following separation Mr Rizzo’s behaviours deteriorated rapidly. He was convicted of certain offences and imprisoned for a period of 12 months.
d)It would seem that during this period, on Mr Rizzo’s evidence, that Mr Rizzo was diagnosed with bipolar and depression and prescribed medication. It is unclear whether he has taken it or followed up with treatment following his release from prison.
e)Mr Rizzo, although he does not specifically or directly refer to it, clearly then fell into “bad company”. He refers at paragraph 23 to his Affidavit as having “stopped” taking illicit drugs in October 2012, whenever it may be that he started.
Mr Rizzo does not disclose when he commenced taking drugs, although clearly this included marijuana as well as significant and unhealthy use of alcohol. That is gleaned from the suggestion that drug use had ceased and that alcohol use had significantly reduced, although not completely ceased. As a consequence of or in some connection with those behaviours referred to by Mr Rizzo in the description, “I did everything I could to stop leading the kind of life I was living,” Mr Rizzo’s house was destroyed by fire in somewhat suspicious circumstances, potentially connected with drug use and drug culture.
Further difficulties arose for Mr Rizzo upon his move to Queensland. He lost his licence and he had various other difficulties as a consequence of traffic infringements.
Mr Rizzo has not spent any time with the children, in effect, since separation, save on two occasions when he came upon the children, pre-organised or otherwise, being Easter 2012 when he left some gifts for the children at their school and a time in January 2013 when he was travelling by train and at (omitted) met with the boys and gave them Christmas presents.
In light of all of the above evidence, I am satisfied that:
a)Mr Rizzo is aware that the proceedings are listed before the Court today;
b)Mr Rizzo is, in all probability, able to participate and attend the proceedings today, whether in person or by application to appear by telephone. The Federal Circuit Court is required by its enacting legislation[1] to deal with proceedings informally and is permitted to use electronic-communication means, such as attendance by video or telephone. There has been no such application.
c)Mr Rizzo is aware that the Court would be moved today to make final and undefended Orders;
d)Mr Rizzo has taken no step to address or participate in the proceedings in any meaningful fashion since his Application was filed nearly two years ago. Rule 13.03A(1)(e) of the Federal Circuit Court Rules 2001 requires that an Applicant prosecute their Application with “due diligence”. If an Applicant is in default of that obligation then rule 13.03B permits dismissal of the Application and rule 13.03C permits the Court to conclude the proceedings.
e)Mr Rizzo has been afforded due process throughout the proceedings, and particularly with respect to the listing of the matter today and the matter proceeding by way of final and undefended determination;
f)Ms Grieve would be denied due process if the proceedings were further adjourned. Due process applies equally to both parties. Ms Grieve has a right to a conclusion of these proceedings. They have been on foot now for nearly two years. If the matter was adjourned, it would need to be adjourned, albeit that there is no agitation for adjournment, for a period of approximately six months. If Mr Rizzo then engaged in the proceedings, as to which I have no confidence he would, then hearing dates would not be allocated, in all probability, until mid 2016. It would be necessary to update the expert’s Report and thus, the children would be subjected to further interviews. I will deal with the interviews that have already been undertaken for the preparation of the Report shortly;
g)The children’s best interests would not be served by continuation of these proceedings. That is particularly so in light of discussion by the High Court and in particular, Kirby J in AIF & AMS [1999] HCA 26 as to the costs of litigation. It is not only financial cost. It is also the emotional cost which comes from dealing with proceedings and having one’s life on hold whilst proceedings are on foot. That is significantly compounded in these proceedings, whereby Ms Grieve and the children have all been to varying degrees and extents, traumatised by past behaviours of Mr Rizzo and as a consequence, are re-traumatised each time that they are required, in the case of Ms Grieve, to attend Court or address matters through her attorneys. In the case of the children, to be told by their mother that the matter has again been adjourned and remains on foot or more tangibly, involved in further appointments with a forensic purpose whereby they are required to be interviewed and provide information would be traumatising; and
h)Lastly, I am not satisfied that any purpose would be served through further adjournment.
[1] See sections 42 and 66 Federal Circuit Court of Australia Act 1999.
During the course of this year the proceedings have been managed in a fashion consistent with the Report’s recommendations and with the intent of seeking to avoid risk of harm to Mr Rizzo. The time must come when the proceedings require conclusion and I am satisfied that time is now.
The steps that have been taken over some eight months to allow Mr Rizzo to read the Report and receive assistance, have hopefully allowed him to be fully appraised of the contents of that document. However, having been appraised of the contents, it would be consistent with his knowledge and understanding of the Report and recommendations that he would withdraw from the proceedings. He has not filed a Notice of Discontinuance but he has most assuredly withdrawn. And whilst it cannot be found to be proof positive of his desire to withdraw completely from the proceedings, it is consistent with his acknowledgement that his cause is, as it were, doomed.
The Orders which must be made are clear and somewhat irresistible. It is difficult to comprehend on the evidence presently available, including Mr Rizzo’s solitary Affidavit, how the outcome could possibly be different if the proceedings were adjourned. Whilst I do not propose to deal with the matter by way of summary dismissal pursuant to section 17A of the Federal Circuit Court of Australia Act 1999, I am satisfied that this would potentially be a valid means of address.
The position that Mr Rizzo seeks to prosecute by his Application, seeking to spend alternate weekend time with the children, including overnight time and blocks during holidays, is on the evidence, incapable of success.
Mr Rizzo has had a more than abundant opportunity to place evidence before the Court should he have wished to cavil with the success prosecution of Ms Grieve's Response.
The relief that is sought by Ms Grieve is somewhat irresistible in light of the evidence which is now before the Court comprising not only Ms Grieve’s unchallenged evidence, but the Part 15 expert’s Report. That is not to elevate the Report to some privileged position. It is purely part of the evidence. However, it is the most direct and compelling evidence, particularly with respect to the children’s views and wishes.
For all of those reasons I am satisfied that the matter can, will and should today proceed on a final and undefended basis.
Material Considered
In dealing with the proceedings today I have read each of the documents identified in the Case Outline provided by Ms Grieve's Counsel. This comprises:
a)The mother’s Response filed 29 April 2013;
b)The mother’s Affidavit of evidence-in-chief filed 7 November 2014;
c)The Affidavit of Mr A sworn 6 November 2014 and filed 7 November 2014;
d)The Affidavit of Ms Schrale sworn and filed 18 December 2014.
In addition, I have read and considered the Application and Affidavit of Mr Rizzo as initially filed in the proceedings, as well as the Notice of Risk filed by Ms Grieve on 12 June 2013.
I have also read a Minute of Orders tendered by the Independent Children’s Lawyer marked Exhibit ICL1. Those Orders are substantially consistent with the recommendations of the Part 15 Report and the Orders sought by Ms Grieve.
There was, when the matter was first called, one issue of contention between Ms Grieve and the Independent Children’s Lawyer, although Ms Grieve has, through her Counsel, indicated that she does not wish to cavil with the slight amendment sought by the Independent Children’s Lawyer and it is, accordingly, a Minute of Orders supported by both the mother and the Independent Children’s Lawyer.
Evidence
I do not propose to canvas the evidence in significant detail. Suffice to say that each of the documents identified above, particularly Ms Grieve’s comprehensive and well drawn Affidavit of evidence-in-chief, have been considered by me as well as the extensive Part 15 Report. Those documents form part of the Court record and are readily available to anyone wishing to review these reasons. I also do not wish to do so as the proceedings are dealt with in a duty list and there are limitations upon time. More importantly however, I am conscious that the contents of those documents and their repetition aloud in Court in Ms Grieve’s presence will simply cause her more hurt than is warranted by the recitation of material that is clearly recorded.
The totality of evidence that is before the Court and identified above has been read and considered. As Ms Grieve’s material is unchallenged and I am entirely satisfied that Mr Rizzo has had an abundant opportunity to place a case before the Court and challenge Ms Grieve’s case, I accept Ms Grieve as a witness of truth. Her evidence is internally consistent and plausible and it is, to a large extent, corroborated, particularly in relation to the more concerning allegations that are raised therein. That corroboration arises importantly from the children themselves who corroborate a significant history of family violence.
I am conscious that whether due process has been afforded to Mr Rizzo it must be viewed within the context of the High Court’s decision in Allesch v Maunz (2000) 173 ALR 648. Due process involves extending to a litigant an opportunity to be heard not an opportunity to be heard at a time of their choosing. That Mr Rizzo has been afforded due process lends support to my acceptance of the evidence of Ms Grieve. By reference to Tate & Tate [2000] and the discussion of the evidence above, I am satisfied that Mr Rizzo has had an abundant opportunity to prosecute his position and to challenge evidence of Ms Grieve. Indeed, he has had since March 2013 a period now of 21 months.
Mr Rizzo was ordered to file material and he has failed to do so. On that basis alone I would be satisfied that Ms Grieve’s evidence can and should be accepted as truthful. However, as indicated Ms Grieve’s evidence is internally consistent, plausible and largely corroborated.
Ms Grieve was born on (omitted) 1974. She is accordingly now 40 years of age.
Mr Rizzo was born on (omitted) 1972. He is 42 years of age.
The parties commenced living together in a de facto relationship in (omitted) 1993. On (omitted) 1997 they were married.
The parties separated on 6 May 2009. They have subsequently been divorced.
Interim parenting Orders were made on 28 June 2013. Those interim parenting Orders provided that Ms Grieve would have sole parental responsibility and that the children would live with their mother. An Order was made pursuant to section 68B of the Family Law Act 1975 which restrained the father from approaching, contacting or communicating with the mother or the children or from coming within 100 metres of the mother’s home or the children’s school. No positive Order in favour of the father was made.
At interim hearing the father had agitated for an Order for supervised time. However, on the evidence as it stood I was concerned that any such Order would potentially expose these children to unacceptable risk. The evidence at that point and even prior to preparation of the Part 15 Report suggested that all three children and the eldest two in particular, had witnessed significant events of family violence, significant drug and alcohol use, significant violence between other adults perpetrated by or inflicted upon Mr Rizzo and that the children were generally reacting with revulsion to the concept of re-introduction to their father.
In those circumstances, an Order for supervised time would have been entirely inappropriate. Supervision is not a cure-all, although, sadly it is often seen as one. It is not intended as a means of bridging a gap between unsupervised time and nothing. It is intended to be utilised if, and only if, it is safe and appropriate.
Supervision does not obviate against risk to children simpliciter. Supervision prevents children being directly physically harmed and it protects a parent, who may suggest that allegations levelled against them are unwarranted, unfair or exaggerated, from being the subject of further allegation. However, it is a fallacy to assume that supervision can and should apply in every circumstance where there is an allegation of risk to a child.
The children describe that they have been terrified and terrorised by behaviours that have occurred in their lives. To re-expose them to the perpetrator of terror would be to inflict abuse upon them. It is not the role of the Court to do so. To enliven and reignite in the minds of children the trauma they have previously experienced is, potentially, to retraumatise them. And accordingly, the plea for such Order was rejected.
Orders were made which advanced the matter towards a conclusion. In that regard, a Family Report was commissioned. However, it soon became apparent that a Part 15 Report would be preferable. Thankfully, funding was made available by the Legal Aid Commission that permitted such a Report to be prepared and in a relatively short timeframe the Report was prepared.
As indicated above, since separation the children have lived with their mother and have spent little if any time with or in communication with their father. There have been a number of impediments to that of a practical nature such as the father’s incarceration and his move to Queensland for a period of time. There have also been real bases in the evidence that would have obviated against that time.
The mother raises significant and extensive allegations of family violence inflicted upon her, inflicted upon the children and witnessed by the children. Certainly these events, consistent with Mr Rizzo’s evidence, escalated in the latter part of the relationship. However, they permeated the totality of the relationship. Violence and conflict was circumjacent to the children’s lives.
There are other allegations with respect to the father including criminality, real concerns with respect to his untreated mental illness or disorder at different points and issues, allegations that treatment was rendered ineffective through substance abuse. There are real allegations with respect to the father’s engagement with illicit drugs and in the relationship in particular, substantial and significant alcohol use to the point of regular if not daily intoxication. Those allegations speak to escalations in violence as a consequence of that intoxication.
It is difficult, in light of the mother’s evidence, which I accept, to accept that which had been alleged by the father in his Affidavit March 2013 that he had simply stopped drinking. The evidence suggests a most significant and disturbing use of alcohol over a period of 20 years. The evidence includes various occasions of coming to the attention of the Police with respect to driving offences and other aberrant behaviour whilst intoxicated. The evidence suggests a dangerous level of drinking on a daily or near daily basis.
These are all behaviours Ms Grieve has endured. These are all behaviours that these children have endured. Those behaviours, in combination with the father’s family violence as perpetrated towards the children and his escalating descent into mental ill health no doubt had a profound impact upon Ms Grieve and these children. In essence, the entire family’s lives were destroyed by the father’s behaviours, some of which, no doubt, are responsive to or reactive to the traumas that he experienced himself as a child.
Mr Rizzo is not criticised for being the victim of those behaviours. One cannot help but have the greatest empathy for his traumatic experiences as a child abused by those from whom he was entitled to receive love and protection. Mr Rizzo is criticised, however, for the behaviours that he has perpetrated himself.
Mr Rizzo’s abuse as a child provides some explanation for his behaviours. It cannot justify his behaviours and the impact they have had upon these children. Mr Rizzo’s behaviours have certainly resulted in his being abusive of these children.
I do not propose to elaborate each and every detail of those allegations. Ms Grieve provides 39 pages of detail all of which, in this case, is appropriate. In this matter the Affidavit was prepared in contemplation of a defended hearing and Ms Grieve has appropriately and thoroughly prepared her case for a final hearing.
I propose now to turn to the legislative pathway. I make clear again, lest there be any controversy on appeal or otherwise, that the totality of evidence has been considered. To the extent the individual portions may not have been referred to in the above discussion that is for the sake of brevity, convenience and to spare Ms Grieve further ordeal. All of the evidence has been considered and I will refer to further portions of the evidence in the discussion of the legislative pathway.
Legislative Pathway
I must commence with section 60CA of the Act which reminds the Court that in that is done, the child’s best interests are the paramount consideration.
I must then turn to section 60B of the Act setting out the objects and principles of the Act, which section I incorporate herein:
Objects of Part and principles underlying it
(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).
The objects and principles bear some real scrutiny in this case. Whilst they do not provide the substantive law to determine the cause, they guide the Court’s determination by indicating that which the Court must ensure.
The Court must ensure that children’s best interests are met, subject to it being found to be contrary to their best interests, by children having the benefit of both parents having a meaningful involvement in their lives and protected from physical or psychological harm through exposure to abuse, neglect or family violence.
Sadly, in this and many cases both of these objects cannot be achieved. They must be balanced.
The objects are drawn in very similar terms to the primary considerations in section 60CC of the Act. There is no basis upon which the Court would proceed to balance the objects other than in the same fashion as the primary considerations as described by section 60CC(2A) of the Act. Risk of harm must outweigh all other considerations, including any potential benefit to a child of a meaningful relationship with the other parent (assuming for one moment that a relationship to which conflict and violence is circumjacent can be properly described as “meaningful”).
I could not be satisfied on the above evidence and the further evidence to which I will now turn dealing with the children’s views and wishes, that there is benefit to these children of having involvement – let alone meaningful involvement – with their father at this point in their lives and at this point in their father’s life.
Expert Evidence
I have not previously touched upon the Part 15 Report. It, to a large extent, as regards the interviews with the parents, corroborates through concession by Mr Rizzo the allegations that are raised by Ms Grieve. It is somewhat concerning that Ms Grieve's Affidavit, albeit prepared for the purpose of identifying the issues in the proceedings not presenting the totality of his case, omitted so many matters which were then conceded by him in his discussion with the Report writer. That is not to be critical of the attorney who drew the Affidavit and was, at that time, providing assistance to Mr Rizzo. The Affidavit is prepared on instructions and I have no doubt whatsoever that the matters ultimately disclosed and revealed by the evidence, particularly the Part 15 Report, came about through Mr Rizzo withholding that information from his attorneys.
It would seem that Mr Rizzo has only been prepared to make the extensive concessions he has, to the extent that he has made them at all, following the issue of a raft of subpoena by the Independent Children’s Lawyer who has diligently ensured that all relevant information which the Court would require to properly assess the serious allegations with respect to family violence is before the Court. They are to be commended for that.
The portion of the Report that I wish to particularly deal with relates to the interviews with these children. Ms O, commencing at paragraph 135 of her Report continuing through to paragraph 144, canvasses her meeting with young Z, then seven years of age. It is suggested Z was talkative once rapport had been built and that he was quite open in answering questions during interview. However, it then describes that he became anxious and distressed when separated from his mother and he became visibly upset when the notion of spending time with his father was raised. He is, at that point, described as becoming hyper-vigilant, starting to look over his shoulder and seeming agitated and nervous. That is behaviour that would be entirely consistent with this child having experienced significant trauma, either at the hands of or as a consequence of his time with or involvement with his father.
It is otherwise described at paragraph 139 that: “Z described his father by saying that, “he has drugs and beers every day”. The very allegation Ms Grieve raised of the father.
Z described the father’s then home at (omitted) as “a bad place”. He describes that his father did not prepare food or attend to the children’s needs, primarily because he was drunk and the children were thus left, when they had spent time with him, feeling as though they were starving.
Z suggests that the father yelled at the children repeatedly and frequently smacked them and caused them real pain when doing so. Z gives a cogent description of various unseemly folk attending at the father’s home (at the time that Mr Rizzo’s home was burnt down and when he was involved in illicit drugs) whilst they were present and the children being scared.
Everything stated by Z is consistent with the history that had been given by Ms Grieve.
Z made two statements in relation to potentially seeing his father suggesting that he might see him on a limited day-only basis but then indicating that he would be concerned with even that in case his father might steal him. That is something that all three children refer to. Ms O refers to this as an “apparent inconsistency”.
I am not concerned that what is described as an apparent inconsistency would suggest any lack of truth or candour by the child. It is clear from that which he describes, entirely consistent with his mother’s evidence, that he has been exposed to significant injurious behaviours, behaviours that no child should be exposed to, particularly not by their parent. That he might have both a desire to know his father and yet be fearful is not, I am satisfied, an inconsistency.
At paragraphs 145 to 154 the interview with Y is discussed. Y was then 11 years of age. At paragraph 151 Y described that he had not seen his father for “a few years” but that when he had been spending time with his father during the relationship and for a short period after separation, that his father was “drunk most of the time” and had friends over who drank and gambled. He described that when with his father he had felt very unsafe and scared. He was equally concerned that his father might take him and his brothers away.
At paragraph 154 Ms O surmises that Y, at his age and level of maturity, appeared to know his own mind well. As regards the possibility, as Mr Rizzo had raised, that the children had been coached or influenced in some way, Ms O rejected the assertion, indicating that whilst it was possible that he might have been influenced to believe that his father might abduct him, he did not appear in any way to have been coached and his affect was congruent with his statements and he appeared visibly distressed at the prospect of spending time with his father. I accept that evidence.
Paragraph 155 to 165 of the Report related to the interview with X. X describes his father, (at paragraph 159), as manipulative and gives a similar and consistent description of visits with his father post-separation whereby he and his brothers were feeling scared, his father being generally drunk, unsavoury characters being at the home, things being rowdy, and feeling particularly scared on one occasion when he was present when his father scuffled with Police and was arrested, handcuffed and taken away.
Concerningly, X refers, (no doubt being the period that the father refers to prior to the firebombing of his home) to being present and finding numerous needles at the front of the home, which he describes he picked up because he didn’t want his brothers to be injured. He describes that when with his father he had felt threatened due to the father’s drunkenness, and generally did not know what to do next. He could not identify positives associated with his father and indicated, tellingly, that after he ceased seeing his father “life got a whole lot better”.
X was very clear at paragraph 161 of the Report that he did not want to have any contact with his father “at all”. He described being much happier and less worried since they had ceased spending time or communicating with their father. His views could not be clearer. The assessment of his maturity and his formation of his own views based on lived experience was, again, the subject of positive comment by Ms O and I accept that evidence.
The children’s observation with their father was canvassed. It is suggested that when the children were with their mother they appeared comfortable and that the children, when it was suggested that they interact with their father, were significantly upset and disturbed.
It is suggested that the children were entirely non-plussed with the experience of meeting their father. X was adamant that he did not wish to see his father. Y became tearful. Z became anxious and agitated when the idea was raised. Thus, Ms O concluded that, given that the children had not spend time with Mr Rizzo for almost two years, a one-off brief observation was unlikely to be informative and thus, the matter was not pressed further.
The relationship between the children and their father was not observed, but the relationship as the children perceive it and have stated it clearly would not suggest or support a meaningful involvement at this point, nor a meaningful relationship, or any benefit from seeking to procure either, even if there were logistical and practical means suggested that might achieve it.
Mr Rizzo is bedevilled by his own demons at this point. He needs to deal with them. He clearly has not done so for very many years if ever. Unless and until those matters are addressed, and that is something spoken to by the Minute proposed by the Independent Children’s Lawyer, then clearly these children will not benefit. They may not benefit in the future. Nothing could be achieved by seeking to force time and a relationship at the moment other than further distress, anxiety and re-traumatisation of these children.
The principles in section 60B(2) of the Act create rights for these children. However, those rights are all subject to the caveat that they do not apply when it is contrary to their best interests. Children have a right to know and be cared for by both parents and to spend time on a regular basis with both parents. That has not happened for these children for very many years, now in excess of four years. The children are entirely content with that situation. The children perceive no benefit to them nor safety, in a relationship with their father.
It is difficult to comprehend how the children could develop a relationship with their father when, if they are with him, they feel unsafe. If they developed a relationship it would be one in which fear and anxiety would be or remain circumjacent to the relationship. It would also be a relationship that could not be described as meaningful, but rather strained and difficult, indeed, uncomfortable.
I am not satisfied that it would be consistent with the children’s best interests, particularly having regard to their views and the dangers and risks to which I am satisfied they would be exposed without concrete proof by the father of change in his behaviours, attitudes and insight, for them to pursue a relationship.
Parental Responsibility
I must then turn to section 61DA of the Act and determine whether the presumption of equal shared parental responsibility applies. Whilst there may be some controversy as to whether that finding can be made prior to a consideration of section 60CC of the Act, I make clear that all of those factors have been addressed in my mind and I will deal with them logically and in order. However, one must make a finding as to whether the presumption applies before dealing with any other factor, as sections 65DAA(1)-(4) of the Act operate dependent upon the application or otherwise of the presumption. I will expand upon the reasons for the findings which support the non-application and/or rebuttal of the presumption, but make clear at this point that I am satisfied that the presumption cannot apply.
I accept Ms Grieve’s evidence, supported by the children’s statements to Ms O that there has been significant family violence. These children have been exposed to significant family violence and I am satisfied that they have, through that exposure, been psychologically harmed and significantly so. The definitions of “abuse” and “family violence” in sections 4 and 4AB of the Act respectively, which I incorporate herein, make clear the interconnection between the two. Those sections provide:
abuse, in relation to a child, means:
(a)an assault, including a sexual assault, of the child, or
(b)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.
And:
(1)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 person’s family (the family member), or causes the family member to be fearful.
(2)Examples of behaviour that may constitute family violence include (but are not limited to):
(a)an assault; or
(b)a sexual assault or other sexually abusive behaviour; or
(c)stalking; or
(d)repeated derogatory taunts; or
(e)intentionally damaging or destroying property; or
(f)intentionally causing death or injury to an animal; or
(g)unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
(h)unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
(i)preventing the family member from making or keeping connections with his or her family, friends or culture; or
(j)unlawfully depriving the family member, or any member of the family member’s family, of his or her liberty.
(3)For the purposes of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.
(4)Examples of situations that may constitute a child being exposed to family violence include (but are not limited to) the child:
(a)overhearing threats of death or personal injury by a member of the child’s family towards another member of the child’s family; or
(b)seeing or hearing an assault of a member of the child’s family by another member of the child’s family; or
(c)comforting or providing assistance to a member of the child’s family who has been assaulted by another member of the child’s family; or
(d)cleaning up a site after a member of the child’s family has intentionally damaged property of another member of the child’s family; or
(e)being present when police or ambulance officers attend an incident involving the assault of a member of the child’s family by another member of the child’s family.
Family violence is focused upon coercive and controlling family violence, violence that is intended to terrorise. In this case it has.
The mother gives evidence of sexual assaults, stalking, physical assaults, derogatory taunts, damaging property, denying financial and social autonomy, and thus touches upon most, if not all, of the illustrative elements contained within the definition of “family violence”.
Importantly, abuse is established when the Court is satisfied that a child has suffered serious psychological harm through exposure to, or being the subject of, family violence. I am satisfied from Ms O’s evidence that it is so. Accordingly, findings are made of both the perpetration of family violence and abuse by the father. That being so, the presumption cannot apply. It is not a matter of rebuttal of the presumption, it simply cannot apply.
Lest I am wrong in that regard, I am satisfied that the presumption would, if it applied, be rebutted. Clearly the parties do not and cannot communicate. It would be entirely inappropriate to impose the onerous burden upon Ms Grieve of having to deal with, negotiate with, and make a genuine effort to reach agreement regarding major issues with Mr Rizzo. That would be the consequence of an Order for equal shared parental responsibility as made clear by section 65DAC of the Act, setting out the effect of a parenting Order which provides for shared parental responsibility.
I propose in due course to make an Order that Ms Grieve have sole parental responsibility. That would come as no surprise to Mr Rizzo as there has been an Order in force for over 18 months allocating sole parental responsibility to the mother.
Time with Mr Rizzo
As the presumption does not apply and/or is rebutted, I am not obliged to consider equal or substantial and significant time before considering any other time arrangement.
There is no agitation for time Orders, but whether there is or not the Court would, if the presumption applied, still be obliged to consider it. I need not and do not.
I propose to consider all future arrangements for the children by now turning to section 60CC, incorporating therein section 65DAA(5) of the Act.
I must commence with the primary considerations, being:
a)The benefit to the child of having a meaningful relationship with both parents; and
b)The need to protect the child from physical or psychological harm through exposure to abuse, neglect or family violence.
Subsection (2)(a) priorities the latter over the former.
Serious physical and psychological harm has been occasioned to these children in the past and I am satisfied that an unacceptable risk would occur in the future and is established. As regards the determination of unacceptable risk I incorporate the relevant portions of Deacon & Castle [2013] FCCA 691 herein:
454. In dealing with an issue of unacceptable risk, I am considerably assisted by the Full Court’s decision in Johnson & Page and particularly passage of that judgement at paragraphs 62 and 63 and 65-68 (inclusive) as follows:
“Relevant legal principles
The principles to be applied by a trial Judge in determining whether a child should spend time with a parent when the issue of sexual or other serious abuse is alleged to have been perpetrated on the child and/or it is asserted there is an unacceptable risk of harm to the child if the child spends time with a parent are those set out by the High Court in M and M.
Given the nature of the challenge to his Honour’s reasons it is appropriate we set out the relevant passages from M and M at 76-77
In considering an allegation of sexual abuse, the Court should not make a positive finding that the allegation is true unless the Court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v. Briginshaw (1938) 60 C.L.R. 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.
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.
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.
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) V.R. 298 at p. 300), “an element of risk” or “an appreciable risk” (M and M (1987) FLC 91-830 at pp. 76,240-76,242; (1987) 11 Fam L.R. 765 at pp. 770 and 771 respectively), “a real possibility” (B and B [Access] (1986) FLC 91-758 at p. 75,545), a “real risk” (Leveque v. Leveque (1983) 54 B.C.L.R. 164 at p. 167), and an “unacceptable risk” (In re G. (a minor) (1987) 1 W.L.R. 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.”
455. And:
456. In W and W (Abuse allegations: unacceptable risk) (2005) FLC 93-235 the Full Court (Warnick, May and Boland JJ) discussed the issue of “the unacceptable risk test” and in so doing reviewed a number of cases determined after M and M. Their Honours at paragraph 111 noted:
In summary, the law is well settled as to the standard of proof required to make a positive finding of sexual abuse, and that such a finding should not be made unless a trial Judge is satisfied to the highest standard, on the balance of probabilities abuse has occurred. We accept, as a matter of practice, a trial Judge will almost inevitably be required in a case where sexual abuse allegations are raised to consider whether abuse has been proven on the balance of probabilities as well as considering whether or not an unacceptable risk of abuse exists. The High Court in M and M recognised the difficulty in defining with any degree of precision what constitutes an “unacceptable risk” and the cases determined after that decision testify to the difficulty. However, the questions posed by Fogarty J in N and S, and referred to by us in paragraph 105, do provide a structure or framework which may assist a trial Judge to assess future risks to a child.
457. Two recent decisions of the Full Court have again examined the question of unacceptable risk. In Napier v Hepburn (2006) FLC 93-303; (2006) 36 Fam LR 395 the majority (Bryant CJ and Kay J with whom Warnick J agreed in upholding the appeal), by implication, approved passages from Fogarty J's discussion in N and S (1996) FLC 92-655 at 82,713 which are as follows:
One of the difficulties which arises in the application of these principles is in seeking to preserve an independent content to the notion of ‘unacceptable risk’. Though the purpose behind the notion is to assist a court in determining what is in the child’s best interests, the importance of asking the question separately lies in its specific guidance to courts faced with the difficulties which cases of sexual abuse raise. There is a danger that it will be treated just as an expression which must be ritually used in judgments which involve questions of sexual abuse, but given no substantive meaning or weight. It is easy to say that there is or is not an unacceptable risk of sexual abuse, and so to be seen to be applying the correct legal test. Those words seem sometimes to be used without an appropriate degree of consideration.
Because it may be said that in every case there is, at least in theory, a risk of harm, it is inevitable that courts will have to make some effort to quantify the relevant risk. In S and S, [1993] NZFLR 657] Thomas J addressed the difficulty involved here. At 670 his Honour said:
“Qualifying words such as ‘unacceptable’, ‘real’, ‘serious’ or ‘appreciable’ are merely methods of expressing the fact that the risk has a foundation in the evidence which is incompatible with the welfare of the child.
In the Court of Appeal, [[1994] NZFLR 26] Gallen J, Cooke P and Hardie Boys J agreeing, said at 33-4:
“It is in the assessment of the risk that the difficulties arise. The cases all indicate that it is not ‘any degree of risk’ which is sufficient and various adjectives have been used to indicate the degree of risk which can justify appropriate action on the part of the courts. The four most commonly used adjectives are ‘unacceptable, real, serious or appreciable’. None are particularly helpful and discussion of them tends to degenerate into a matter of semantics. The judge in this case indicated that they were merely methods of expressing the fact that the risk has a foundation in the evidence which is incompatible with the welfare of the child. While at first sight that is a helpful formulation, the same difficulties arise in determining what kind of foundation is necessary and what kind of risk can properly be said to be incompatible with the welfare of the child.
In the end I doubt whether a court can go beyond saying that there must be actual evidence which at the very least gives rise to the conclusion that behaviour may have occurred or may occur which has had or could have deleterious effects on the child concerned. It must be more than mere conjecture and need not go as far as the proof which would justify a conviction. From that it will be seen that there are two emphases to be kept in mind. The first is the foundation from which the conclusion may be drawn and the second and by far the more important, is the effect which can rationally be predicted on the child. In considering the whole matter as the judge points out, it is necessary to bear in mind the serious consequences which can occur to a child if he or she is subjected to behaviour which is inappropriate in this area.
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 the particular case fall, and to explain adequately their findings in this regard.
In asking whether the facts of the case do establish an unacceptable risk the court will often be required to ask such questions as: What is the nature of the events alleged to have taken place? Who has made the allegations? To whom have the allegations been made? What level of detail do they involve? Over what period of time have the allegations been made? Over what period of time are the events alleged to have occurred? What are the effects exhibited by the child? What is the basis of the allegations? Are the allegations reasonably based? Are the allegations genuinely believed by the person making them? What expert evidence has been provided? Are there satisfactory explanations of the allegations apart from sexual abuse? What are the likely future effects on the child?
This is not a catalogue of the correct questions, but a reminder that it is questions such as these which are required to be considered in deciding whether an unacceptable risk may be shown. The weight to be attached to the various answers to the relevant questions will inevitably vary from case to case. But it is essential that questions like these be asked.
In answering the unacceptable risk question the court must undertake a qualitative analysis. For instance, that determination cannot appropriately be made through a process which counts the number of considerations which favour access, and those which militate against access, and then asks on which side the balance falls. Rather, the essential weight must be attached to the magnitude of the harm to which the risk relates. The notion of ‘unacceptable risk’ must be assessed in light of the grave consequences of sexual abuse to a child’s development, as well as the effects of future contact with the party. As Thomas J said at 670:
“In assessing whether the risk is unacceptable, the court is not merely evaluating the risk that sexual abuse between the parent and child will occur. Inherent in the risk to the child are the potentially severe and destructive consequences of sexual abuse should it in fact occur. These potentially ruinous consequences do not need repeating. The probability of lasting emotional and psychological damage to the child, generally becoming acute during adolescence, is well-documented.”
Against this background, the resolution of any allegation itself is what the High Court at 12 Fam LR 610; [1988] FLC 77,080 termed ‘subservient and ancillary to the court’s determination of what is in the best interests of the child’. This recognises that sexual abuse is not a matter which lends itself to convenient characterisation in traditional evidentiary terms, such as may be appropriate for more public and easily detectable offences. Though ‘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’, to require such a finding as a prerequisite to satisfaction of the unacceptable risk test would make no allowance for the reality and nature of sexual abuse or the essential task of the court — the promotion of the welfare of the child. The High Court has emphatically rejected such an approach.
In M v Y, [[1994] NZFLR 1] Hardie Boys J (Cooke P and Gallen J agreeing), warned against the danger of allowing a resolution of the allegations to overwhelm the issue at 8:
“It is all too easy — and it is understandable — where an allegation of gross misconduct towards the child is levelled at a parent, for the focus to shift from the welfare of the child to the truth of the allegation. Its truth will doubtless be very important in an assessment of the child’s welfare, but it will not always be crucial. But for the accused parent, most particularly if the accusation is false, its refutation may seem essential; while the accuser, firmly believing it, may see it as essential to sheet it home. Along the way, it is easy to lose sight of the child, innocently caught up in the midst of the strife.”
If the court is able to make a balance of probabilities finding that sexual abuse has taken place, that finding will have a powerful, often decisive, bearing on any contemplated orders. But an inability to be so satisfied will not have such an effect. The court must still ask the ‘unacceptable risk’ question. An example of this is Thomas J’s approach at 681-2:
“I do not consider that it has been established on the balance of probabilities having regard to the seriousness of the allegations that Mr S sexually abused his son. But I am not prepared, Temm J’s decision in Y v M notwithstanding, to make a finding, applying the same standard of proof, that Mr S did not sexually abuse his son. Whether one likes it or not, the answer to that question remains uncertain, and it is that uncertainty which must be taken into account in determining what is in L’s best interests.”
This is not to suggest that there is a two-step approach which must be followed, but a reminder that the failure to be satisfied of the occurrence of sexual abuse on the balance of probabilities does not of itself answer the question whether an unacceptable risk can be said to exist. There is no requirement to ask whether the evidence satisfies a balance of probabilities finding in favour of abuse, though that may nevertheless be useful in some cases. There is, however, a requirement to ask whether the evidence establishes an unacceptable risk. [Full Court’s emphasis]
458. Also potentially relevant to the issues raised in this appeal are Warnick J's comments in his separate judgment in Napier v Hepburn, which were adopted with approval by the Full Court in Potter v Potter (2007) FamCA 350. His Honour said:
I also wish to add some comment on what I perceive as a further goal of fulsome discussion by a trial judge of the component aspects that may, in any given case, lead to a conclusion of “unacceptable risk” of harm to a child. That goal is to provide a platform, for any future consideration of the family’s circumstances. Once a finding of unacceptable risk is made, imperfect though the process that leads to that result may be, the finding can come down between parent and child like an iron gate, that no subsequent efforts can raise. At least a close examination of the steps leading to a finding of “unacceptable risk” can illuminate paths by which a family (or a court making decisions for a family) might subsequently explore options for change. (paragraph 114)
459. In his recent paper entitled ‘Unacceptable risk – A return to basics’ the Hon. John Fogarty A.M. set out his summary of the principles emerging from M and M as follows:
(a) The decisive issue is and always remains the best interests of that child.
(b) All other issues are subservient.
(c)The nature of the risk is best expressed by the term ‘unacceptable risk’. It is an evaluation of the nature and degree of the risk and whether, with or without safeguards, it is acceptable.
(d) Where past abuse of a child is alleged it is usually neither necessary nor desirable to reach a definitive conclusion on that issue. Where, however, that is done the Briginshaw civil standard of proof applies.
(e) The circumstance, if it be so, that the allegation of past abuse is not proved in accordance with Briginshaw, does not impede reliance upon those circumstances in determining whether there is an unacceptable risk.
(f) The concentration in these cases should normally be upon the question whether there is an unacceptable risk to the child.
(g) The onus of proof in reaching that conclusion is the ordinary civil standard.
(h) But the components which go to make up that conclusion need not each be established on the balance of probabilities. The court may reach a conclusion of unacceptable risk from the accumulation of factors, none or some only of which, are proved to that standard.
and thereafter expanded some points contained in the summary.”
By reference to the above material it would be clear, in combination with the discussion of evidence undertaken above, albeit briefly and in summary, that these children, having been harmed by the father at times when he has been afflicted by disabilities including:
a)Mental health problems, whether diagnosed or accurately so;
b)Drug and alcohol addiction and abuse; and
c)A general predisposition to violence;
that unless there is clear and demonstrated evidence that those behaviours have been or are being addressed and are now historical, a clear risk must exist in the future.
There is no evidence to suggest a change. There is no evidence to suggest that Mr Rizzo has taken any active step let alone developed the necessary insight to be an instrument of change in his own life and to make it so. Accordingly, I am satisfied that time between the children and their father would be an unacceptable risk to the children. That must outweigh the benefit that these children might receive from a meaningful relationship with both parents, (or at least their father they already enjoying a meaningful relationship with their mother).
Each of the children identified to Ms O that their mother is the most important person in their life and the most significant and safe relationship for each of them.
The children do not presently have a relationship with their father, certainly not a meaningful relationship, nor a relationship that is healthy or positive. The children reject a relationship. They indicate that they feel unsafe, and in fact feel anxious and resistant when it is suggested that they contemplate meeting with him, let alone spend time with him.
Accordingly the primary considerations wholly support Ms Grieve’s position as supported by the Independent Children’s Lawyer.
Additional considerations
Views
It would be clear from authorities such as Harrison & Woollard (1995) FLC 92-598 and Re R Children’s Views [2000] FamCA 43 that significant weight must be attached to these children’s views having regard not only to their age and their maturity, but also to the circumstances in which the views are formed. The context of these children’s views is that they have developed revulsion with respect to their father as a consequence of his behaviours in their presence and towards them. I must, I am satisfied, give far greater weight to those views.
The views of the two elder children at their ages, their maturity, their level of cognizance of past behaviour and future risk and their concerns and fears with respect to harm not only to themselves but to their younger brother and mother, are such that I would not countenance an Order that was contrary to their views. These are young men who have experienced a childhood completely filled with terror. That may not have been the deliberate intent of Mr Rizzo, labouring as he was with an undiagnosed mental illness and trauma from his own childhood experience. But it is how it is.
I have no doubt that Mr Rizzo did not deliberately set out to cause harm to his children. But he has, and the price for that, in these children’s minds, is that they no longer desire any mention of their father, let alone a relationship with him.
The children’s views entirely support the relief that is sought by Ms Grieve. It is in fact possible, in light of the children’s views, that even if letters, cards and gifts are sent by the father, opened by the mother and considered appropriate and passed on to the children, that even they would be rejected.
Nature of the children’s relationship with each parent and other persons
These children clearly enjoy an excellent relationship with their mother and a range of people through their mother. They enjoy an excellent relationship with each other. It is a relationship, again, forged through their joint, shared, and lived experience of having to deal with a parent who was dysfunctional and violent. In those circumstances, anything which interfered in that relationship should be avoided. The children are rejecting a relationship. Ms Grieve would clearly be distressed and potentially impacted in her relationship with the children or her capacity to provide for them if steps were taken to force the relationship.
In those circumstances, again, there is nothing but support for the mother’s position. The children’s relationship with their father at the moment is non-existent or, at best, unhealthy.
The extent to which each parent has taken, or failed to take, the opportunity to participate in decision-making, spending time or communicating with the child
On its face, that is a significant criticism of Mr Rizzo. But to be fair to him, he has not, since the interim parenting Orders referred to above, had the opportunity. He has been restrained by injunction, with an attached power of arrest for breach involving physical violence, from coming into contact with the children. That is an Order which I was satisfied at the time, and remain satisfied, was entirely appropriate and protective of these children. However, it would obviate against criticism of the father for not participating since.
The father has, however, failed to participate in decision-making by failing to prosecute his Application or appear in these proceedings.
I do not take it to the extent of considering that he has abandoned his position. If he has, it is no doubt something that should be a positive and some degree of praise for him, acknowledging that the outcome is so predictable that it is pointless to put all through the pain, misery and expense of prosecuting an Application doomed to fail.
The extent to which each parent has fulfilled, or failed to fulfil, their obligation to maintain the child
There is no significant evidence and the issue could not be dispositive. However, these children are maintained solely by the mother and those assisting her. The father does not contribute and in all probability, has little or no capacity to do so.
Likely effect of change, including separation from either parent or other child
There would be a disastrous impact on these children of change, whether moving from their mother’s care permanently or temporarily. They reject a relationship, experience physical and psychological trauma in addressing the possibility of the relationship, let alone its reality and thus any change in their present arrangements – living with their mother safely and securely, with her looking after them well and making entirely appropriate and protective decisions for them – should not be countenanced.
The impractical difficulty and expense
I incorporate herein section 65DAA(5) of the Act and address the factors therein as follows.
The parents may or may not live within relative proximity of each other. It cannot be gauged as the father’s specific whereabouts are not known and the Court will not require that Ms Grieve disclose any further information to the Court that would be retained upon the file as to her address.
The parents’ current and future capacity to implement an arrangement is clearly demonstrated by events in separation. It cannot be done safely, it cannot be done appropriately, and thus it should not be done at all.
The parents’ current and future capacity to communicate with each other and resolve difficulties is non-existent and has been for many years.
The impact on the children has already been discussed.
Capacity of each parent to meet the children’s needs, including emotional needs
The degree of trauma that these children have experienced and expressed in how they feel about their father and their relationship with him is a clear testament to the incapacity of Mr Rizzo to care for and meet the needs of these children. For any parent, whether affected by mental illness or disorder, drug or alcohol abuse or otherwise, to behave in the manner that Mr Rizzo has towards the mother, towards the children, towards the mother in the presence of the children, and towards others in the presence of the children, let alone rendering himself drunk or intoxicated in their presence, is entirely unacceptable and demonstrates a significant lack of insight.
That may well be an insight that is explicable, having regard to Mr Rizzo’s difficulties in life. But explicability and appropriateness are entirely separate concepts. I am sure that if Mr Rizzo receives and obtains the assistance and the benefit of it that he so badly needs, that he will feel real remorse for what he has done to Ms Grieve and these children and what he has lost – his children. It is not the Court taking them from him. He has pushed them away and he has caused them to reject him.
Maturity, sex, lifestyle and background to the children
There are two important elements particularly in relation to X and Y – not children, but young men.
Firstly, they are young men who, one would hope, will not model their father’s behaviours but will in response to his behaviours, grow up to be far more human and decent men, particularly towards women. However, they are mature young men and their views must not only be taken into account but must be seen to be taken into account. They will be.
Secondly, the children have perhaps grown up earlier than they might have through the lives that they have had. They have been exposed to behaviours that the majority of children in a civilised, first world country would not be exposed to and which no child should be exposed to.
That in my mind means that the weight which must attach to their views, and the weight which must attach to a protective and conservative response to their welfare, is heightened. That entirely supports the relief sought by the mother.
Aboriginality
Neither parent identifies as Aboriginal or Torres Strait Islander and nor do the children.
The attitude to the children, and the responsibilities and duties of parenthood demonstrated by each parent
I am satisfied that this is adequately addressed above. Ms Grieve has done an excellent job, all the more so because she has done it dealing with the slings and arrows of Mr Rizzo’s discontent with life, and has done so in the most onerous of circumstances. She is to be congratulated for having survived what she has been put through by Mr Rizzo, let alone having survived it and parented three young men who are performing as well as their abilities permit and much better than one would expect in light of that which they have endured.
Family Violence
Family violence in this case is significant. It is significant in every case. Family violence is fundamental to all which the Court does. Family violence becomes relevant to proceedings under the Family Law Act 1975 before they are even commenced, being one of the bases upon which Family Dispute Resolution need not be attended. It is otherwise a phrase used more often and consistently throughout Part VII of the Family Law Act 1975, that any other phrase, including “best interests”. That is because it is so significant.
Family violence is a scourge upon society. It is regrettable that sometimes it is seen that “violence” is justified or made different, perhaps more acceptable, by attaching the prefix “family” to it. It does nothing of the sort.
As was remarked many years ago by Oliver Wendell Holmes “Don't flatter yourself that friendship authorizes you to say disagreeable things to your intimates. The nearer you come into relation with a person, the more necessary do tact and courtesy become”. The corollary is perhaps that it is regrettable that the closer in proximity a person has become, the more gay in their abandon they feel in the harm that they inflict on the other. It is thus that the closer people are in intimate, loving relationship – or so they should be when parties are married – the greater the mischief and evil they will inflict on the other.
If society has previously accepted family violence as the private domain, then shame on society. Society has been wrong to do so and it should no longer be so. The cost is too high.
Any crime, whether committed behind closed doors and within the institution of marriage or not, is a crime. Society has a real interest in ensuring that family violence is exposed, addressed and ended. Its victims are powerless or deficient in their power. The victims of family violence include children who are under a legal disability and who deserve society’s collective response and protection. It must be so for the sake of the individual and society as a whole. The lasting impact and detriment to children exposed to family violence impedes their health, happiness, development and their ability to take their place in society having achieved their full potential. Thus, society is also the victim.
Family violence in this case has had a profound impact upon not only these children’s relationship with their father but these children. They will live with the consequences of their father’s behaviour forever.
The mother is doing an excellent job in assisting them to move on through life and one would hope that the strength that she has shown will be enough to keep these children on the straight and narrow. However, the family violence that the children have been exposed to, which they have taken into account in their own minds and in forming their own opinions – rejecting their father – is such that one could not countenance any Order which compelled them to spend time with or communicate with him even if it were practical and possible.
Family violence orders
There have been many but there would not appear to be one in force at present. That is perhaps explicable, as Mr Rizzo does not know the present address of Ms Grieve or the children. One would hope that might remain so.
Whether it is preferable to make orders that will least likely lead to the institution of future proceedings
I am conscious that these are proceedings dealt with in the absence of Mr Rizzo. Accordingly, rule 16.05 of the Federal Circuit Court Rules applies. Mr Rizzo has a right to apply to reopen and be heard. On that basis, if nothing else, I am satisfied that the Order that is sought by the mother and the Independent Children’s Lawyer, imposing conditions upon the father making further Application to the Court, is appropriate. That is separate and distinct from his right to apply to reopen. However, it is improbable, unless and until he has dealt with his demons, that that would eventuate.
Mr Rizzo has had a perfect stage available to him in these proceedings and for some 20 months but he has failed to participate. I am satisfied that the best Orders that can be made, both to avoid future proceedings and to bring peace, calm and stability to the lives of Ms Grieve and these children and meet the best interests of these children, is to conclude the matter today and by making Orders as are sought in Exhibit ICL1.
I certify that the preceding one hundred and forty-two (142) paragraphs are a true copy of the reasons for judgment of Judge Harman
Associate:
Date: 26 February 2015
Key Legal Topics
Areas of Law
-
Family Law
-
Civil Procedure
Legal Concepts
-
Injunction
-
Jurisdiction
-
Remedies
-
Procedural Fairness
-
Appeal
-
Costs
0
6
4