Rose & Park
[2008] FamCA 593
•31 July 2008
FAMILY COURT OF AUSTRALIA
| ROSE & PARK | [2008] FamCA 593 |
| FAMILY LAW – CHILDREN – With whom a child lives – Equal shared parental responsibility – A positive finding that father has sexually abused a step child – finding that father is sexually aroused by his biological child – father has care of a step child of the parties who is over 18 and where there has been a finding of sexualised behaviour – supervised time Family Law Act 1975 (Cth) B and B (1993) FLC 92-357 Moose and Moose [2008] FamCAFC 108 Johnson & Page (2007) FLC 93-344 |
| APPLICANT: | MR ROSE |
| RESPONDENT: | MS PARK |
| FILE NUMBER: | CSC | 572 | of | 2007 |
| DATE DELIVERED: | 31 July 2008 |
| PLACE DELIVERED: | Hobart |
| PLACE HEARD: | Cairns |
| JUDGMENT OF: | Benjamin J |
| HEARING DATE: | 27, 28 & 29 May 2008 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mrs J Willis |
| SOLICITOR FOR THE APPLICANT: | Williams Graham Carman |
| COUNSEL FOR THE RESPONDENT: | Mrs J Willis |
| SOLICITOR FOR THE RESPONDENT: | Mr B K Gillan |
| COUNSEL FOR INDEPENDENT CHILDREN’S LAWYER | Mrs Benson |
| SOLICITOR FOR INDEPENDENT CHILDREN’S LAWYER | Legal Aid Commission of Queensland |
Orders
The mother and father have equal shared parental responsibility in consultation with each other for making decisions about major long term parenting issues for the child (born … October 1995) (“the child”).
For the purpose of these orders equal parental responsibility referred to in order 1 above shall include:-
(a)the child’s education;
(b)the child’s religious and cultural upbringing;
(c)the child’s health;
(d)the child’s name; and
(e)any changes to the child’s living environment making it significantly more difficult for the child to spend time with either parent.
The child live with the mother.
The child be at liberty to communicate with the father by telephone and/or email, and/or SMS as is requested by the child, subject to the mother having access to read and record such electronic communication.
The child supervised spend time with the father as follows:-
(a)for a period of up to three (3) hours once a week at times negotiated between the parties and in the event the parties are unable to agree from 11.00am until 2.00pm on Sunday;
(b)for a period of up to three (3) hours on
(i) the father’s birthday;
(ii) the child’s birthday;
(iii)Christmas Day;
(c)If the effect of order (a) above is that the child would spend time with the father on Mother’s Day, such time on that or those weekends shall be on the Saturday before Mother’s Day from 9.00am until 2.00pm in lieu of the time on the Sunday;
(d)for social occasions involving the paternal family, as agreed by the parties, provided that the child is taken to such functions by or on behalf of the mother and collected by on or behalf of the mother with such time not to include any overnight visits.
(e)such other supervised times as are agreed in writing between the parties.
The time that the father spends with the child in accordance with order 5 above is to be supervised by a person or organisation approved by the Independent Children’s Lawyer or otherwise determined by a court exercising jurisdiction under the Family Law Act provided that such supervisor will provide an undertaking in writing to a Registrar of this court that:-
(i) such supervisor will not leave the child at any time unattended in the care of the father;
(ii)the supervisor has read and understood the reasons upon which these orders are based and acknowledges the risk to the child;
(iii)the supervisor has read and understood these orders.
The parents will share equally any costs associated with the supervised time the father spends with the child.
All supervised time with the child will take place, if at all possible, in [K] or as close to that place as reasonably practicable.
The father be at liberty to provide appropriate gifts and greeting cards to the child on special occasions.
The father is restrained from:
(a)having unsupervised time with the child; and/or
(b)approaching the child; and/or
(c)communicating with the child or attempting to do so or arranging anyone else to do so, including via phone calls, sms messages, email or mail;
other than as set out in these orders or otherwise agreed in writing between the parties.
Within fourteen (14) days from the date of these orders the mother will give written authorisation to the school/s which the child attends to provide the father with copies of any school reports or written communication regarding the child’s progress. In the event that the child changes school then the mother will give such authorisation to the new school within 14 days of the child’s enrolment.
The father shall be entitled to attend school functions and performances (including but not limited to open day activities, sport and swimming carnivals) to observe and interact with the child subject to the school principal and relevant school teachers being given copies of the reasons upon which these orders are based and these orders and that they acknowledge that the father cannot be left alone with or isolated with the child.
The mother will keep the father informed in a timely fashion, of any medical or other issue pertaining to the child including details of any medical, dental, psychological or psychiatric treatment undertaken by the child.
The parties will at all times keep one another informed (in writing) as to such parties’ residential address and their home and mobile telephone numbers upon which they can be contacted. Each party will provide to the other party, within forty eight (48) hours, notice and details, of any such change of address and telephone numbers.
Both parties are restrained from denigrating, abusing, demeaning or belittling the other party in the presence of or hearing of the child.
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.
The Independent Children’s Lawyer will:
(a)meet with the child as soon as practicable in the company of Dr R and explain the orders and the reasons upon which these orders are based to the child AND for this purpose the mother will make the child available and ensure that the child is brought to an appointment at a time and place reasonably nominated by the Independent Children’s Lawyer and the mother must not be present during the meeting between the child and the Independent Children’s Lawyer;
(b)provide a copy of these orders to the principal of the child’s school within fourteen (14) days from the date of these orders;
(c)provide to the child’s therapist a copy of :
(i)these orders;
(ii) the reasons upon which these orders are based;
(iv)the expert report from Mr E;
(v)the Family Report from Dr R;
The Independent Children’s Lawyer be discharged upon completion of her obligations arising from these orders being:
(a)advising the child of the nature of these orders;
(b)nominating or approving a suitable advisor;
(c)approving the father’s nominated therapist.
The mother and father will do all acts and things to facilitate the child’s attendance upon a therapist as recommended by the Independent Children’s Lawyer for the purpose of receiving further protective behaviour training and therapeutic counselling to assist with the issues arising from the conflict and for this purpose:
(a)the mother and father will share equally any costs associated with the child’s counselling.
(b)the mother will ensure that the child is presented for such counselling as recommended by the counsellor.
This matter be removed from the list of cases requiring determination.
All subpoenaed documents are to be returned to the persons or institutions from which they emanated and all exhibits are to be returned to the person or persons who tendered the same.
IT IS CERTIFIED
Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel and counsel to attend.
IT IS NOTED that publication of this judgment under the pseudonym Rose and Park is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT HOBART |
FILE NUMBER: CSC572 of 2007
| MR ROSE |
Applicant
and
| MS PARK |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
These are proceedings between Mr Rose (“the father”) and Ms Park (“the mother”) who are each seeking different orders in regard to the parenting of a child of their relationship (“the child”) who was born in October 1995 and was aged about twelve and a half years at the date of the hearing of these proceedings.
The mother claims that the father sexually abused D (a child of a previous relationship of the mother’s and a step-child of the father) and that from time to time the father becomes sexually aroused when the child is near him or the subject of conversation with him. As a consequence the mother claims that the father constitutes an unacceptable risk of sexual abuse to the child.
The father denies the allegation of sexual abuse to the other child and claims that it was fabricated. He denies he becomes sexually aroused by the child. He says that he does not constitute a risk of abuse to the child.
An Independent Children’s Lawyer represented the interests of the child.
Both parents seek orders that they have equal shared parental responsibility for the child. The mother seeks orders that any time the child spends with the father is supervised and such time should be limited to weekly visits of two hours, two hours on the child’s birthday and father’s day and that such visits ought to be supervised.
The father seeks orders that the child live with each parent on a week about basis, alternate Christmas Days, alternate Christmas holidays and that such visits should not be supervised.
The Independent Children’s Lawyer at the end of the trial submitted that there should be an injunction restraining the father from spending any time alone with the child until she attained the age of 18 years.
Any statement of fact in these reasons is to be regarded as a finding of fact unless the contrary is clear from the context of the statement.
BACKGROUND
The father is aged 48. He is in relatively good health but for a hernia which requires surgical intervention. Details of the hernia are the subject of further discussions later in these reasons.
The father has not re-partnered, he undertakes some casual employment and receives a carers allowance for looking after G (the elder child of the mother and her previous husband, Y).
G is presently aged 21. She suffers from a learning difficulty and it is uncontentious that her IQ is relatively low and that she has an intellectual disability which means she presents intellectually and in a maturity way of a child who is about 12 or 13 years old. It is not an issue that the relationship between G and her mother has broken down and that they do not see each other. G lives with the father who is her carer.
The mother is aged 46. She has three children, the child, G and D. (D was born in March 1988 and is now aged 20).
The mother and her former husband, Y separated in about May 1994. There was an issue as to whether the mother immediately commenced cohabitation with the father or whether there was a six or seven month gap at the end of her relationship with her previous husband and the commencement of the relationship with the father. Little swings on that fact and there seems to be no forensic reason to make a determination on that fact.
The mother and father lived together under the same roof from 1994 until January 2006 at which time the mother left the parties’ home and commenced living with her present husband, Mr Park (who is aged 51 years).
The child was born during the mother and father’s relationship.
In about July 2004 D moved out of the home of the mother and father. Shortly after that time the mother met Mr Park and at some time prior to leaving the parties home at K that relationship had developed into a serious romantic attachment. Subsequent to January 2006 the mother and Mr Park have married.
For a number of years prior to the January 2006 separation the mother had left a significant proportion of the care of the child and G to the father. The mother conceded that she went out drinking and gambling on a regular basis prior to leaving the father in January 2006. The mother asserts that she no longer gambles and drinks and she was cross-examined on this evidence.
The mother’s evidence, which is in dispute, is that she was concerned that the father was grooming the child for sexual abuse in the way that she and D had alleged had occurred in D’s circumstances.
In January 2006, the mother moved into her present husband’s home and it is clear that the child rejected that move, that she was acting out and was not accepting her separation from the father. Perversely, the mother at one stage over this period placed the child in a taxi and sent her back to the care of the father (notwithstanding the mother’s concerns about the sexual abuse of the child by the father).
At the time of separation the mother had made a complaint to the Queensland Department of Child Safety and the Department visited the parties, interviewed them and in February 2006 the mother voluntarily placed the child in foster care. The mother and father both consented to an order that the child remain in foster care for a period of 12 months. She in fact remained in foster care for just under 12 months. The child remained in foster care for much of the 2006 calendar year, however the child returned to the care of the mother shortly after Christmas 2006.
During 2006 the father saw the child on a supervised basis. The observations of child protection officers were part of the evidence during the hearing of these proceedings.
The mother says that whilst she and the father lived together for the last two or three years of their relationship they have had separate bedrooms and were essentially separated but living under the same roof. It is clear from the records of the Department of Child Safety that at least in January 2005 the parties regarded their relationship as over.
After the parties commenced cohabitation in 1994 they lived together in various places between far North Queensland and the Gold Coast. In 1996 the parties returned to the Gold Coast and whilst at the Gold Coast operated a retail business. In 2001 that business was sold and the parties moved back to K in North Queensland.
In the middle months of 2004 D has formed a relationship with a bus driver who was many years older than her. In about July 2004 D moved out of the home of the mother and father and commenced living with the bus driver. At that stage D was 16 years of age. The mother’s evidence in relation to D leaving home was ambivalent. The mother said that she was unhappy about D’s relationship with the older bus driver but felt it was better for D to get out of the parties home. In any event shortly before D left home in 2004 some letters and documents came into the mother’s possession. These being letters from the father to D which had initially been written whilst he was working in Asia in 2002 and subsequent letters written by him since that time.
There is no issue that the language used by the father in the letters to D is inappropriate, how I deal with those letters[1] is dealt with later in these reasons.
[1] Annexure ‘A’ of the affidavit of Ms Park filed 20 May 2008.
At about that time the mother broke into the father’s filing cabinet and recovered a torn up letter. When the mother broke into the filing cabinet she found a letter addressed to a bus driver “[N]” [2] together with D’s diary and a bottom part of D’s swimmers[3].
[2] Annexure ‘B’ to affidavit of Ms Park filed 20 May 2008.
[3] Exhibit M2 & M3.
ISSUES
In these proceedings the primary issue is whether the father presents as unacceptable risk of sexual abuse to the child. The evidence in that regard falls into a number of areas, namely:-
(a)the detailed evidence of allegations of sexual abuse by the father of D;
(b)the inappropriate letters and communications which passed from the father to D between 2002 and 2004;
(c)the allegation that D observed the father and G in circumstances where it was reasonable to infer that there was sexual or sexualised interaction between the father and G;
(d)whether there is evidence or material where it could be inferred that the father was commencing to “groom” the child for sexual abuse by him. In that respect the mother gave evidence about the type of games played by the father with the child, in particular “Marco Polo”. The mother said that the father used familiar names for the child. D gave evidence that she was concerned about the father’s showering of the child;
(e)the accuracy of the evidence of the mother and child protection officers that the father became sexually aroused when being in contact with the child. The father’s evidence being that he suffered from a lower abdominal hernia which became enlarged when he stood up. There is no issue that the father has a large abdominal hernia which his doctor described as:[4]
[4] Report of Dr J prepared in 2006 being annexure “LR-2” of the affidavit of the father filed 22 June 2007.
This is to certify that [the father] was examined today in regards to his left inguinal lump which has been present for about twelve years. It has gotten progressively larger over the years. The lump is a size of three quarters of football in his left scrotal area extending up to his left inguimal area. The lump reduces in side dramatically upon lying down. This lump is a large hyrocoele-inguinal hernia combination. The only treatment is surgical correction.
A further report was prepared by Dr V. In that report, which was obtained at the request of the Queensland Department of Child Safety, the doctor observed:-
The father was wearing shorts and a button up shirt. There was a distortion of his clothing in the area of his left groin.
On examination [the father] had a very large left inguimal (groin) hernia, which extended into the left scrotum and contained bowel. The hernia was only partly reducible when [the father] lay down and increased in size when he sat or stood up.[5]
The father said that he had not sought surgical intervention in relation to this problem due to his fear of such surgical intervention.
(f)The accuracy of the evidence from the Officers of Department of Child Safety that, in addition to their assertions that the father often had an erect penis when seeing the child, that he kissed the child on the lips or attempted to, lent over into the child’s personal space and hugged the child front on.[6] The evidence of Ms P was that she requested that the father kept physical contact to a minimum and there would be no kissing on the lips, hugging, whispering and or passing of notes.[7] Notwithstanding that he had been counselled against such behaviour the records of the department show that the father kissed the child on the face and attempted to put the child’s seat belt on and then tried to kiss her on the mouth without success. In terms of this evidence I prefer the evidence of the Child Safety Officers.
[5] Report of Dr V dated the 9 February 2007 annexure “LR-7” to the affidavit of the father filed 22 June 2007.
[6] Paragraphs 1(a) and (b) of the affidavit of Ms T filed the 13 May 2008.
[7] Paragraph 2(e) of the affidavit of Ms P filed on the 13 May 2008.
THE RELEVANT LEGAL PRINCIPLES TO BE APPLIED
In exercising its jurisdiction in relation to children, the Family Court is bound by the provisions of the Family Law Act1975 (Cth) (“the Act”). This is a proceeding to which the provisions of Division 12A of Part VII of the Act applies.
The object of Act relating to children is to ensure that the best interests of the children are met. Section 60B(1) of the Act provides that this can be done by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
The principles set out in s60B(2) that underlie those objects are that, except when it 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).
Each of the parents of a child has complete but several parental responsibility for their child pursuant to s61C of the Act. This is subject to any court order and must be considered in the light of the so called presumption arising out of the operation of s61DA of the Act. Section 61DA is part of the amendments and became operative on 1 July 2006. The section provides that a Court must apply a presumption that it is in the best interests of a child for that child’s parents to have equal shared parental responsibility[8] for the child. The section provides as follows:
(1)When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
Note: The presumption provided for in this subsection is a presumption that relates solely to the allocation of parental responsibility for a child as defined in s61B. It does not provide for a presumption about the amount of time the child spends with each of the parents (this issue is dealt with in s65DAA).
[8] Parental responsibility is defined by s61B to mean “all the duties, powers, and responsibilities and authority which, by law, parents have in relation to children.”
(2)The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b)family violence.
(3)When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4)The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
If the presumption is found to apply and is not rebutted as not in the best interests of the child, an order must be made in accordance with s61DA for equal shared parental responsibility. If not, the Court must make a declaration that the presumption does not apply and for reasons pursuant to subsections within s61DA.
The effect of an order which provides for shared parental responsibility, whether equal or not, is set out in s65DAC. That section provides as follows:
(1)This section applies if, under a parenting order:
(a)2 or more persons are to share parental responsibility for a child; and
(b)the exercise of that parental responsibility involves making a decision about a major long term issue in relation to the child.
(2)The order is taken to require the decision to be made jointly by those persons.
Note: Subject to any court orders, decisions about issues that are not major long term issues are made by the person with whom the child is spending time without a need to consult the other person (see section 65DAE).
(3)The order is taken to require each of those persons:
(a)to consult the other person in relation to the decision to be made about that issue; and
(b) to make a genuine effort to come to a joint decision about that issue.
(4)To avoid doubt, this section does not require any other person to establish, before acting on a decision about the child communicated by one of those persons, that the decision has been made jointly.
The question of the allocation of parental responsibility needs to be determined before the question of with whom the child lives and/or spends time with, and the degree of communication a child is to have with another person is determined (see s64B(2)). This is because where the presumption of equal shared parental responsibility applies, the Court must consider whether it is in the best interests of the child to order equal, or substantial and significant time pursuant to s65DAA. In circumstances where s65DAA does not apply because the presumption does not apply, there still should be consideration of whether in the factual circumstances, an order for equal, or substantial and significant time is appropriate.
Should parties be unable to agree about the living arrangements of a child, a Court must, in determining whether it should make orders or in determining what orders should be made, have regard to the best interests of the child as the paramount consideration. Section 60CA the Act provides:
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
How a Court determines what is in the best interests of a child is set out under s60CC of the Act. From 1 July 2006, those best interests are determined under a two tiered approach pursuant to s60CC, which lists “primary considerations” and “additional considerations”. A Court must consider the matters set out in s 60CC unless considering a consent order, in which case the Court may, but is not required to, have regard to the matters set out in ss60CC(2) and (3) of the Act. Part of s60CC reads as follows:
Primary considerations
(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistence with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
Additional considerations
(3) Additional considerations are:
(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;
(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);
(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;
(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;
(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;
(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;
(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;
(h)if the child is an Aboriginal child or a Torres Strait Islander child:
(i)the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture);
(ii)the likely impact any proposed parenting order under this Part will have on that right;
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
(j)any family violence involving the child or a member of the child’s family;
(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;
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m)any other fact or circumstance that the court thinks is relevant.
A Court must consider the s60CC(2) considerations as “primary considerations”. This does not mean that they inevitably outweigh the “additional considerations”, but some weight must be attached to the term “primary”. A Court must consider each of the additional considerations separately. A Court should have regard to all of the matters set out in s 60CC to consider how, together, they should give effect to either or both of the primary considerations in determining the child’s best interests.
In this case the primary considerations set out in s60CC(2) go to the core of the decision, although they must be taken into account with the additional considerations under s60CC(3).
The meaning of the primary considerations has been considered by Bennett J in the recent unreported decision of G and C [2006] FamCA 994 in which her Honour said:
The primary considerations
65.The primary considerations echo the first two objects set out in s60B. The primary considerations are set out in s60CC(2) of the Act described as follows:
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
66.This is a case where both of the primary considerations are relevant.
The benefit of a meaningful relationship – as a primary consideration.
67.The correct interpretation of s60CC(2)(a) is not free from doubt. One possible interpretation is that the court must take the benefit to the child of having a meaningful relationship with both of the child’s parents as a given – that is that there is a benefit to a child of having a significant relationship with both parents and the other factors have to be evaluated taking that matter into account.
68.The second possible interpretation is that the court must evaluate the nature and quality of the relationship to establish whether any “benefit” or meaningful relationship exists.
69.While I did not have the benefit of legal submissions on this point, I must nevertheless determine the issue as best as I can. Because I am required to interpret new legislation the meaning of which is not immediately apparent, I am permitted to have regard to the Explanatory Memorandum to the Family Law Amendment (Shared Parental Responsibility) Bill 2006 [pursuant to s15AB of the Acts Interpretation Act 1901 (Cth)].
70.The arguments supporting the first possible interpretation include:
(a)Had the legislature intended an examination of benefits and detriments it would have phrased the sub-section to include the words “or otherwise” after the word “benefit”;
(b)The explanatory memorandum in that part which deals with this sub-section is generally expressed to support the suggestion that the benefit of the child having a meaningful relationship is intended to be understood as a “given”;
71.The arguments supporting the second possible interpretation include:
(a)Section 60CC read in its entirety is a section which calls for the various factors therein outlined to be evaluated and weighed in coming to a view on what is in a child’s best interests;
(b)The primary considerations are described in the explanatory memorandum (paragraph 4) as follows:
“The intention of separating these factors into two tiers is to elevate the importance of the primary factors and to better direct the court’s attention to the revised objects of Part VII of the Act which are set out in the new section 60B...”
The explanatory memorandum does not contemplate that the factor is to be accepted rather than evaluated. It simply explains that the legislature intended to elevate it to a more prominent role;
(c)The whole of s60CC calls for an evaluation of various factors by the court.
(d)Had the legislature intended to build in a presumption that there is a benefit to every child in every circumstance the legislature would have made such a presumption clear. I note in other parts of the amended legislation the legislature has clearly described presumptions which it intended the court to apply;
(e)The terms of s60B (1) (a) (one of the objects of Part VII) discuss the need to ensure that children have the benefit of both parents having a meaningful relationship to the maximum extent consistent with the best interests of the child. The section calls for an evaluation of the best interests of the child in order to achieve appropriate compliance with the object. It would be illogical to then require the court in establishing what is in a child’s best interest under s60CC to accept as a presumption the very issue which will have an effect (in either a positive or negative way) on the attainment of the object.
72.My preference is to adopt the second possible interpretation and I do so. It is a prospective enquiry. I am therefore required to evaluate the extent to which a meaningful or significant relationship with both of his parents is going to be beneficial and of advantage to [the child] into the future.
I agree with her Honour’s approach that “the court must evaluate the nature and quality of the relationship” to establish whether there is any ‘benefit to the child’ in having or continuing a relationship and whether such relationship is or will be ‘meaningful’”. Thus the evaluation should include consideration of whether, on the facts, a meaningful relationship can be established and, if so, whether it is of benefit to the child.
Whilst this is a somewhat circular approach, it seems the logical path to determine what parenting orders to make in the best interests of the child. It is the application of the facts to these principles that will enable the Court make such a determination.
In a recent Full Court decision[9] His Honour Justice Boland had cause to discuss the concept of “meaningful relationship” as follows:
67.The provisions of the amending Act have been described as resting on “twin pillars” (see Mazorski & Albright (2008) 37 Fam LR 518 per Brown J at paragraph 3). The first pillar is the importance of a child having a meaningful relationship with both parents; the second pillar is the need to protect children from physical and emotional harm.
68.Brown J’s judgment in Mazorski contains, in my view, a well researched and thorough exposition of the amendments, with reference to the Explanatory Memorandum, and the legislation itself. Her Honour’s discussion is helpful and her conclusions about s 60CC(2)(a) are cogent.
69.At paragraph 24 of her Honour’s reasons she sets out the dictionary definitions of “meaningful”, and then explains her conclusions on the effect of the term “meaningful relationship”. I respectfully agree with her Honour’s conclusions at paragraph 26 where she says:
What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one. Quantitive concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.
70. In Godfrey & Sanders (2007) 208 FLR 287 Kay J said, in the context of discussing a relocation proposal which involved the father spending less regular periods of time with his child than he was at the date of hearing, “even if the move results in a diminution of quality of the relationship, what the legislation aspires to promote is a meaningful relationship, not an optimal relationship.”
[9]Moose &Moose [2008] FamCAFC 108
PARENTAL RESPONSIBILITY
There is a presumption that it is in the child’s best interests for the parent to have equal shared parental responsibility (s61DA). The presumption relates to the allocation of parental responsibility, not to the time the child spends with each parent. The Act provides for certain circumstances in which the presumption shall not apply or may be rebutted. I need to turn to this because in this case the Independent Children’s Lawyer submits that although both parties want equal shared parental responsibility it ought not occur because there is evidence of emotional abuse by both parents of the children and primarily the parties did not communicate during the relationship and have not communicated since.
It is in the child’s best interests for both parents to participate in major on going decisions about her life. It is particularly important for the child to be able to understand that in addition to the mother and her present husband, she has the benefit of her father’s involvement.
As I have said later in these reasons, the father’s unsupervised physical contact with the child leaves her exposed to the risk of sexual abuse, but the child has a close relationship with him. The mother has had serial relationships and has not adequately protected her three children from sexual abuse. She returned the child to the father in circumstances where she knew of the risk and she abrogated her role as parent from 2004 to January 2006 when she left the care of her children with the father notwithstanding her detailed knowledge of the allegations about his behaviour with regard to D and the correspondence he sent to D. There is no public guardian to appoint for this child, which is a lacuna in the law.
Bearing in mind the findings I have made later in these reasons the presumption does not apply as there are reasonable grounds to believe that the father has engaged in abuse of a child who was, at the time, a member of the parents family.
The question is whether it would be in the child’s best interests for there to be shared parental responsibility. I do not believe that it would, having regard to the poor communication and the antipathy each to the other which is demonstrated in these proceedings in the evidence of both parents, and to the father’s behaviour to D and my concerns about the child. At the same time I have concerns about the mother having sole parental responsibility for the child. These concerns are articulated elsewhere in these reasons.
Section 61C(1) of the Act provides that each of the parents of a child who is not eighteen has parental responsibility for that child. I determine, of the options available to me, this would be the better having regard to the best interests of the child.
LIVES WITH OR SPENDS TIME WITH
Having regard to that order I am then not required to consider whether an order for the child to spend equal, significant or substantial time with each parent would be in her best interests (s65DAA(1)(a)). Irrespective of that outcome I have given consideration as to whether the child should spend equal time or significant and/or substantial time with both or one parent, but bearing in mind my findings with regard to the matters set out elsewhere in these reasons and my findings that the child is at risk of sexual abuse at the hands of the father, I consider that it is not in her best interests to spend equal or substantial or significant time with the father.
I accept the submissions of the Independent Children’s Lawyer that in this case the time which the child spends with the father ought to be supervised. I am satisfied, for the reasons which I have given, that it will be in the child’s best interests to be able to spend supervised time with the father. However, I do not believe that it needs to be supervised by an ‘expert’ as submitted by Counsel for the mother. Supervision should be by a person who has read these reasons and has a healthy scepticism about the father and undertakes to keep the child in his/her sight at all times. This will of course be tied in with the injunction I propose to make restraining the father from being alone at any time with the child until she attains the age of 18 years.
UNACCEPTABLE RISK
The mother alleges that the father has sexually abused D and that the child is at risk of abuse and will continue to be at risk of abuse into the future. The approach in deciding a case involving an allegation of sexual abuse was considered by the High Court in M and M (1988) FLC 91-979. At page 77,080, the High Court said:
… the resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the court’s determination of what is in the best interests of the child. The Family Court’s consideration of the paramount issue which it is enjoined to decide cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse.
The High Court recognised though that findings on the question of sexual abuse will have an important, perhaps a decisive impact on the resolution of the ultimate best interests issue.
As to the relevant standard of proof, the High Court comprising of Mason CJ, Brennan, Dawson, Toohey and Gaudron JJ, emphasised that a judge should not make a positive finding that the allegation was true unless satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v Briginshaw (1938) 60 CLR 336.[10] Their Honours quoted Dixon J (at p.362 of Briginshaw):
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.
[10] M and M (1988) FLC 91-979 at 77,081.
In a subsequent case of S and R (1999) FLC 92-834 the Full Court of the Family Court warned that to establish a serious allegation such as sexual abuse, the “utmost caution” was needed, given the maker of the statement was a child who was not subjected to cross-examination and whose statement was incapable of being properly tested.
In the recent decision of Johnson and Page [2007] FamCA 1235 the Full Court considered the applicable standard of proof. At paragraph 69, the court cited with approval the approach taken by the Honourable John Fogarty in his paper entitled ‘Unacceptable Risk – A Return to Basics’ ((2006) 20 AJFL 249). In particular, the court said (at para 72):
We also agree with Mr Fogarty’s view that reference to the Evidence Act, rather than Briginshaw, is appropriate particularly having regard to s 140(2)(c) of that Act.
Section 140 of the Evidence Act provides:
(1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence; and
(b) the nature of the subject‑matter of the proceeding; and
(c) the gravity of the matters alleged.
I must then consider the allegations of sexual abuse on the balance of probabilities taking into account the matters in s 140 of the Evidence Act.
In M and M, (supra) the High Court acknowledged there would be many cases in which it was not possible for a judge to make a positive finding that sexual abuse had taken place. He or she would then need to determine if there was a risk of sexual abuse, and assess the magnitude of that risk.
The court went on to consider the magnitude of risk that would justify a judge in denying a parent access to a child, and concluded that the test was best expressed by saying that a court should not grant custody or access (now an order in relation to with whom a child will live, or spend time), if it would expose the child to “an unacceptable risk” of sexual abuse.
In B and B (1993) FLC 92-357 the Full Court referred to the “unacceptable risk” test in M and M, and added (at p. 79,778):
The ‘unacceptable risk’ test is therefore the standard used by the Family Court 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.’ In other words, where the court makes a finding of unacceptable risk it is a finding that the risk of harm to the children in having access with a parent outweighs the possible benefits to them from that access.
In a recent Full Court decision of Napier and Hepburn (2006) FLC 93-303 the question of unacceptable risk was considered by Bryant CJ, Kay and Warnick JJ. Their Honours Bryant CJ and Kay J said:
79. The determination of whether the child may have been abused required some assessment to be made as to the father’s credit in relation to his strenuous denials that he has acted inappropriately with the child. The child’s evidence itself was incapable of being tested or necessarily being accurately interpreted. His Honour said that he was unable to reject the allegation as groundless. In doing so, he must by necessary implication have rejected the father’s strenuous denials, but nowhere does he explain why he has done so.
…
84. There remained an obligation on the trial judge to not only evaluate the harm that might befall the child if there is a future act of abuse, but to also evaluate the prospect of such an act occurring. This is not a search for a solution that will eliminate any prospect of serious harm. It is a search to balance the harm that will follow if the risk is not minimised and the harm that will follow if a normal healthy relationship between parent and child is not allowed to prosper
Their Honours went on to say:
99.Absent there being any reason not to accept the father’s denials, we are not persuaded that the evidence reasonably leads to a conclusion that unsupervised contact poses an unacceptable risk of harm to J.
Their Honours also said:
82.What potential there was for these events to continue to occur if they had previously occurred in the past, might well be diminished by the bright lights that have been shone upon the parties and their conduct, in the course of these proceedings.
From this decision it seems clear that establishing that an unacceptable risk exists remains a challenge.
In the recent decision of Brown J in McCoy v Wessex [2007] FamCA 489 her Honour carefully set out the legal principles involved in relation to allegations of sexual abuse at paragraphs 22 to 40.
Her Honour carefully reviewed the law relating to unacceptable risk including the approach adopted by the Full Court in Napier and Hepburn (above) and Potter v Potter [2007] FamCA 350 and observed that:
38. The Full Court noted (at para 79) that the determination of the question of whether the child may have been abused required some assessment to be made of the father’s credit in relation to his strenuous denials that he had acted inappropriately with the child, and that even a finding to the allegations could not be rejected as groundless ought not lead inevitably to a finding of unacceptable risk.
What is clear is that trial judges have a significant obligation upon them to set out clearly the reasons why an assessment has been made as to the father’s credit in relation to his strenuous denials.
In this current case before me I need to determine whether there is an unacceptable risk to the child if she were to spend unsupervised time with the father.
Counsel for the father submitted that the evidence of the experts was that the child was at low risk except if there was a finding in relation to the sexual arousal alleged by the mother in the child’s presence or when her name was mentioned. The experts did give evidence of low risk to the child by the father but their concern would be greater if there was a finding that the father became sexually aroused when in the company of the child or that the father was involved sexually with G.
Having regard to my findings that the father was sexually aroused in the presence of the child or when there was discussion about her I am satisfied that there is a risk that the father is an unacceptable risk to the child. I also have regard to the evidence of the experts as to my concerns about the possibility of a sexual relationship between the father and G. Mr E’s evidence was that he would “have some concerns about [the father] having unsupervised contact with [the child]”, if it was accepted that “something untoward between [G] and [the father] was occurring or had occurred.” [11]
[11] Transcript 28 May 2008, p 11 line 45.
Dr R’s evidence was that sex offenders are more likely to engage in inappropriate behaviour with their step children as opposed to their biological children. She said that if it is accepted that “he was behaving that way with either [D] or [G], and then there remains a query about whether he would behave that way with his biological child”. Dr R conceded that if “all of it falls out she would have concerns”. [12]
[12] Ibid, p 12 line 5.
EVIDENCE AND DISCUSSION
The father gave evidence in accordance with his affidavits filed the 22 June 2007, 26 February 2008 and the 19 March 2008.
That material was read into evidence.
The father agreed that the letters annexed to the mother’s affidavit[13] were written and sent by him and that these were in his filing cabinet, as was D’s private diary. However, he denied that the swimmer bottoms allegedly found in the filing cabinet were put there or kept by him. On balance and after hearing the evidence of the father, the mother and D I am satisfied that the swimmer bottoms were part of D’s swimmers and that they were retained in the husband’s filing cabinet. In view of the evidence in respect of the father’s control of this cabinet and the other material contained in it and accepting the evidence of the mother that she removed these items from the filing cabinet, I infer that the husband placed the swimmers in the filing cabinet and knew they were being held there and where it was a significant issue. He gave evidence about D’s diary that he had refused to return this to D despite her request that he do so. The father said he was keeping them to give to the authorities although he did not do so notwithstanding that he had been to see the authorities. The father’s retained D’s diary and I do not accept his explanation for doing so.
[13] Annexure “A” to affidavit filed 20 May 2008.
The father gave evidence about his hernia. He said he had seen a doctor on 6 May 2008, and he needed a scan. The father said he was waiting to hear back from his doctor. The father gave no satisfactory explanation as to why he had not taken steps earlier to have this problem dealt with. His explanation of fear of surgery must be seen in the light that the issue of his ‘erect penis’ would be a significant factor in this hearing and in the light of his present willingness to undertake that surgical procedure. The issue of his “bulge in his pants” was a significant factor from at least the middle of 2006 yet he has not had it fixed in circumstances where it was available to him to do so.
The father denied each and every allegation of sexual abuse set out in D’s affidavit.
The father said the letters he wrote to D were to let her know that “her family loved her”.[14] The letters were of an intensely personal nature and his desire for D to provide love to him. Some of the material was placed in D’s room under her pillow with an envelope marked “for your eyes only”.
[14] Paragraph 22(12F) of the affidavit of Mr Rose filed the 22 of June 2007.
It was only after seeing Mr W in 2007 that the father said he came to the conclusion that the letters were clearly inappropriate although he said he had some concerns about them prior to that time. The father said that he was “possibly infatuated with [D]”. I am concerned that these views are not his real views and have been adopted by him to ameliorate the impact of the letters.
From the letters and from the evidence I am satisfied that the father was inappropriately infatuated with D. I am satisfied that these were personal letter written by the father to D to further his inappropriate relationship with her. They are not and have not ever been ‘expressions of family love’.
Counsel for the father submitted that whilst the letters he sent to D were inappropriate the father had moved on. On the evidence before me I do not accept that he has.
The father engaged Mr W, a Psychologist, and the father discussed these proceedings with Mr W. The notes of Mr W were tendered in evidence.[15] It is clear that Mr W was shown the letters the father had written to D and it was of concern that part of the material in this exhibit showed an “intervention plan” of:
-know in advance what questions will be asked in court;
-prepare the answers in advance;
-to be clear about [the father’s] response to the letters he wrote to [D][16]
[15] Exhibit ICL1.
[16] Ibid.
In the final year or so before D left home (she left home in about July 2004) she formed friendships with people outside the home and in particular with bus drivers. The father gave evidence that he reported these friendships to the bus driver’s boss and to the police.[17] The father claimed the bus driver came to see him and he warned him off. The mother’s evidence was that she was not informed of this until much later. I prefer the mother’s evidence and from this material there is also evidence of the father warning off a boyfriend of D’s, called S. I prefer the evidence of D that S was warned off.
[17] Ibid.
D also said that the father accused her of sleeping with her friend B, which D said was not true[18]. I accept her evidence in that regard.
[18] Paragraph 62 of the affidavit of D filed the 20 May 2008.
D gave evidence that the father had a photograph of her in his wallet and there were no other individual photos of the mother, G or the child[19]. The father denied that assertion. On balance I prefer the evidence of D.
[19] Ibid at paragraph 89.
During the father’s evidence he said that from his point of view the relationship between him and D bordered on being a “girlfriend/boyfriend” type relationship.
There was an issue between the father and D about what occurred on a trip to Sydney to see the “Footy Show” in about 2001. There is no issue that the trip occurred and that it was only the father and D who undertook this trip. The father had arranged to stay in a hotel/motel and on arrival D discovered it only contained a double bed. The evidence of the father was that he arranged for a fold out bed. The evidence of D was that she was required to share the bed with him and that during the night she was sexually abused by the father placing his hand on the outside of her pants and feeling her bottom[20]. On balance, I prefer the evidence of D in relation to this allegation.
[20] Ibid at paragraph 27.
During the same trip there was also an issue as to which one of the father’s brother’s homes she stayed at. There was no doubt she stayed at one of the brother’s homes and I accept her evidence of the inappropriate sleeping arrangements.
From the evidence I am satisfied that the father’s desire was to isolate D so that he could develop his infatuation with her. I find that the father was grooming D to pursue his inappropriate relationship with her.
Child protection officer, Ms P gave evidence in accordance with her affidavit filed on the 13 May 2008. Her evidence was that she believed that a protrusion arising from the father’s shorts to be an erection. It was separate from the other bulge and a triangular type protrusion. Ms P’s evidence was that she has seen hernias before including in the groin area but not the size of a three quarter football. Her evidence was that what she observed was an erect penis not the hernia. At one stage she saw a bulge rise at the beginning of a conversation about the child but then diminish as a consequence of the father’s alleged poor behaviour being put into context.
The father denied that he was sexually aroused by the child at any time.
I accept the evidence of Ms P, as set out in her affidavit filed 13 May 2008. I am satisfied that she observed that the father become sexually aroused when he came into contact with the child.[21]
[21] Paragraph 1 of the affidavit of Ms P filed the 13 May 2008.
This witness was aware that the father had a bulge in his groin area which is consistent with a hernia but said that she observed the father become sexually aroused from verbal, physical and face to face contact with the child by way of a distinct protrusion in the centre of his shorts and over time increasing and decreasing in size during contact with the child.[22]
[22] Paragraph 2 (b),(c) and (d) of the affidavit of Ms P filed on the 13 May 2008.
I also accept Ms P’s evidence that, notwithstanding being counselled to the contrary, the father deliberately attempted to kiss the child on the lips, touch her shoulders and hair when he had been verbally and formally instructed not to come into contact and that there was evidence of a definite sexual arousal of the father from such contact in that his penis becomes erect and protrudes inside his shorts.
Another child welfare officer, Ms T, gave evidence in accordance with her affidavit filed on the 13 May 2008. Ms T’s evidence as to her observations of the signs of an erect penis was challenged in cross-examination. It was clear from Ms T’s evidence that she observed changes to the shape of the father’s shorts and that this was an erect penis and that the area of erection she saw was different from the area where there was the lump from the hernia. She conceded that as she had not seen the father naked she could not completely exclude the possibility that it was not a hernia.
I similarly accept the evidence of Ms T of her observations of the father’s sexual arousal and his endeavours to cover that arousal.
When the father travelled to Dilli in 2002 he returned with a number of illegal copies of movies in electronic form (“DVD’s”). One of the DVD’s he brought back was clearly inappropriate in that it contained images of abuse and rape including the rape of a woman with a rock. The father said that this DVD was watched by himself and other members of the family including D (but excluding the child). The father said that he felt that it was appropriate for D to see such a video but not appropriate for a 13 year old child to see such a video. He offered no satisfactory explanation apart from the view that it was appropriate for 15 year olds to watch and offered no satisfactory evidence as to why he did not turn the movie off. I accept the evidence of D and/or the mother that the father had said tho them or indicated to them that he has seen this DVD previously but still sought to show it to D.
The father was not an impressive witness. He appeared to give evidence which suited his particular needs and his change of attitude to the letters he sent D in terms of their appropriateness was something he was forced into by circumstances to rather than something which he had any real insight about.
The mother gave evidence in accordance with her affidavits filed the 18 July 2007, the 22 February 2008 and the 20 May 2008. She confirmed that the diary and the swimming bottoms were found by her in the father’s filing cabinet[23]. I prefer her evidence to that of the father in respect of this issue. The mother’s evidence was that the relationship between her and the father had broken down, at least two years before she left their joint home in January 2006. She said that she was endeavouring to find alternate accommodation at least shortly before she left the parties home.
[23] Exhibits M2 and M3.
After D left the home in 2004 and had disclosed to the mother the allegations of sexual abuse the mother permitted the father to take the child and G to Fiji in November 2005 and to the United States in April 2005. The mother did not put in place adequate protective measure for the children.
The mother was cross-examined as to when she became aware of the letters from the father to D. In particular she was cross-examined about a meeting with officers of the Department of Child Safety. The mother has no recollection of that particular meeting but she did recall that D had asked her to collect the letters shortly before D left home in July 2004. The mother arranged to copy the letters.
The mother’s evidence is that the letters written by the father to D were only made known to her shortly after D moved out. D’s evidence was that she provided some letters to her mother at earlier times than that. I prefer the evidence of D in this regard. The difference in he evidence of the mother and D in this respect is not such as to impeach the evidence of either, it is simply a reflection of different recollections from some years ago.
From the period 2004 to 2006 the mother said that she knew nothing about the relationship between D and the bus driver, N, and that she only found out about it much later. She said she only became aware of the relationship between D and the other bus driver, C, shortly before D left the home in July 2004. The mother’s evidence about the relationship between D and the second bus driver C was somewhat inconsistent in that the mother said she was concerned about that relationship but that she believed that it was better for D to be out of the mother’s home. I generally accept the evidence of the mother I this regard, notwithstanding that her evidence about D forming a relationship with a bus driver at aged 15 almost 16 and then moving in when she was 16 was not impressive. The mother’s concerns seemed more about herself than about D at that time.
The mother’s concerns about the father “grooming the child” arose late in the parties’ relationship. Her evidence was these concerns arose shortly before separation in 2006. These concerns included the game of “Marco Polo” which was a touching game which the mother observed between the father and the child in the swimming pool although on most occasions with the child’s friends (the father said he only played this game with groups of children not simply with the child). In terms of this evidence I have not attributed much weight to it bearing in mind the mother’s otherwise lack of protection of her children at that time.
Both the mother and father gave issue of domestic violence at various levels. The father conceded he was violent to the mother (but alleged this was in response to her violence to him) – he denied he was violent towards D. On balance, I prefer the evidence of D in relation to his violence to her. I find that there were episodes of domestic violence between the mother and father, however, the state of the evidence and my concerns about the quality of the evidence of both mother and father are such that I am unable to make detailed findings.
The mother’s evidence was that after D left her home in about July 2004 the relationship between the father and the child changed. The kisses were longer and he paid far more attention to the child. I accept her evidence in this regard as it seems consistent with the later evidence of the child protection officers.
The impact of the mother and father’s separation in January 2006 was significant upon the child. I accept the evidence of the mother that the child ‘acted out’ and the mother’s reaction was, at times, illogical and non-protective, particularly in the circumstances of the mother sending the child to the care of the father after the mother had raised significant issues of sexual abuse in respect of D and her concerns about risks to the child.
Neither the mother nor the father were impressive witnesses.
Mr Park, the mother’s husband, gave evidence in accordance with his two affidavits[24]. The significantly contentious part of his evidence was in relation to his observation of what he regarded as an erect penis of the father on 12 November 2007. In paragraph 8 of his affidavit of the 22 February 2008 Mr Park observed:-
On the visit on 12/11/07, [the mother]] and I both noticed he [the father] had an erection whilst he was playing a game with the child.
[24] Affidavits Mr Park filed 20 May 2008 & 22 February 2008.
He was challenged in relation to this evidence. This evidence must be seen in the light that he is a partisan witness and is clearly aligned with the views of the mother. I give some weight to his evidence. Mr Park was aware of the hernia but was able to differentiate between the hernia and the erection.
In terms of the various allegations made by D, they are as follows:-
(a)D says that when the child was very young she got into bed with the child and the father. Her evidence was that she rolled over and fell asleep and woke up finding the father touching her clitoris. She said she thought she was about 8 years old at the time. She said she pretended to wake up when the father removed his hands from her shorts.[25]
(b)D says that when she was about 12 years old she was lying on a green lounge and the father commenced stroking her chest in a way she didn’t think was right. She changed her position. She said that the father claimed at a later date that she was touching his penis and that was why he was stroking her.[26]
(c)The next incident happened when the parties were living at M when somebody else was living at the home. On one particular occasion D said she was watching television on the couch and when she woke up she found the father had his hand on her vagina. She said this happened on one more occasion. The impact of this was that she wrote a letter to her father and hid it in her room.[27]
(d)In either 2000 or 2001, as a reward for working in the [retail] shop a trip had been planned to go to Sydney to see the Footy Show. D said she was surprised and upset that her mother was not going with her. D had anticipated that her mother would travel on this trip. D’s evidence was that she didn’t want to go alone with the father as she felt that she may be raped by the father. When she arrived at Sydney the first night they spent in a motel/hotel room had only a double bed. The father and D went to see the Footy Show and when they returned to their accommodation she slept, clothed on the double bed but woke up during the night with the father’s hand on her bottom. She said she got off the bed and lay on the floor.[28] She disputes the father’s evidence that he had arranged for a roll-away bed. I prefer the evidence of D about this incident.
(e)The next day D went to a home of one of the father’s brothers in Sydney. D had complained to the father about the incident the night before. Her evidence was that the father dismissed the incident. At the brother’s house she said she was to share the same double couch at that home. She said she slept on the floor.[29] The father’s evidence was that there was a mattress. D’s evidence was that she was asked to get into bed with the father. She declined to do so.[30] I prefer the evidence of D in respect of these events.
(f)On returning to Queensland she gave a letter to her father setting out the some of the events of the abuse. The matter was reported to the police and her evidence was that there was only one person who believed her, being her Aunt H. However, such was the impact of the allegation and the reporting that D felt alienated from her family. She said she had been called a liar by the father and the mother and as such she told the police that she withdrew the charges. She said to the police that she dreamt it and that she had not been sexually abused. She conceded in evidence that she was not happy with the mother’s relationship with the father but it was not because she blamed the father from breaking up the marriage between the mother and her previous husband.
(g)The next occasion D said she had been abused was after the parties had been to K when she was again asleep on the couch and that she woke up finding the father touching her under-developed chest and feeling her nipples. She says the direct physical sexual abuse stopped at that time but she remained conscious of it and that she tried to be protective of herself.
[25] Paragraph 4-7 of the affidavit of D filed on the 20 May 2008.
[26] Ibid at paragraphs 9 and 10.
[27] Ibid at paragraphs 14-17.
[28] Ibid at paragraphs 22-27.
[29] Ibid at paragraph 30-31.
[30] Ibid.
D gave evidence that in 2001 during a contact visit D went to the Surfer’s Paradise Police Station with her biological father and made a complaint that the father had sexually abused her. She also made a statement about what the father had done to her. However, after she had made the first complaint in 2001, D withdrew the complaint saying that she had “dreamt” the attack and that it related to her anger or rage at the mother’s relationship with the father.
D gave evidence that she was not angry at the father’s relationship with the mother although she did raise it on a few occasions. Another reason why D said she had withdrawn the first complaint was because she felt alienated in the family and had “constant thoughts about killing” herself and had suicidal thoughts.[31] I accept her evidence in that regard and it must be seen in the context of a relatively young child dealing with issues which were overwhelming for her and in circumstances where her evidence was that her mother had, at that time, called her a liar.
[31] Paragraph 43 of the affidavit of D filed the 19 of May 2008.
D left the home of the mother and father in July 2004 at which time the mother had copies of a number of letters from the father to D (such letters are referred to earlier in these reasons). The letters were forwarded to the police and the police commenced investigations. D subsequently decided not to go ahead with the allegations as her then boyfriend (the bus driver a number of decades older than her) did not want to be involved in that investigation.
The allegations of abuse must be seen in the context of the inappropriate letters forwarded by the father to his child in circumstances where there is no doubt that he had an inappropriate relationship with the child and that I accept the evidence of Dr R that the father fantasised about D.
D entered into an inappropriate relationship with the bus driver C. The expert evidence is that this is indicative of a history of sexual abuse although this may have related to other matters not that associated with the father.
Evidence was given by D that she went to the police in November 2004 in circumstances where two things occurred; firstly there had been a complaint to Centrelink (for which she blamed the father) and secondly a note had been left on the house at W expressing concern about her welfare. D made enquiries about pursuing previous claims of sexual abuse. D withdrew this complaint and her evidence and that of the mother was that D withdrew it at the request of C the bus driver. D conceded she may have told the police that “at no time had any sexual activity occurred between her and [the father]”. [32] D’s evidence was that at first she didn’t recall saying this but when it was told to her she said in essence two things. Firstly the sexual abuse had stopped some years earlier (when she was 12 or 13) and secondly that there was no consensual sexual interaction between her and the father. I accept her evidence in that regard.
[32] Exhibit ICL 3.
I accept the evidence of D that the father had abused her and that he was controlling of her and limited the friendships she had with children her own age and in particular S and B.
I have also accepted the evidence of D in terms of the songs she referred to in paragraph 105 of her affidavit and the poem referred to in paragraph 78.[33] I accept that the father endeavoured to isolate D from her friends and his almost ‘courting’ endeavours of her as set out by D in paragraphs 105, 106 and 107 of her affidavit.
[33] Affidavit of D filed the 19 May 2008.
I am also satisfied that he showed an inappropriate DVD to D and G, being the DVD referred to earlier in these reasons.
I accept her evidence that D she was the subject of significant inappropriate attention by the father in circumstances of his infatuation with her.
As is always the case evidence over years is not consistent as between the mother and D. Whilst I have concerns about the evidence of the mother (and for that matter the father) I am satisfied to the standard as set out in the High Court in Bringinshaw and having regard to section 140(2)(c) of the Evidence Act 1995 that the father sexually abused D as alleged by her.
The other issue is in respect of the relationship between the father and his step-daughter, G. G is now aged 21 and is in the father’s care. She is alienated from the mother. The evidence of the father is that he is the carer of G and that the relationship is an entirely appropriate one. G is isolated in a small community and has little involvement in life apart from that of the father.
D claims that she observed inappropriate sexualised behaviour between the father and G when D was about 16 years of age.[34] This allegation is denied by the father.
[34] Ibid at paragraph 112.
I prefer D’s evidence about what she saw between the father and G as set out in her affidavit.
I am not satisfied to the requisite standard that there is a sexual relationship between the father and G, but equally I am not satisfied that it did not occur or is not occurring. I am satisfied that the father has engaged in inappropriate sexualised behaviour with G. In cross-examination of D during the hearing it became clear that the father had brought G to the Court, at least on day two of the hearing.
I was concerned that G was brought to court. G’s intellectual status has already been set out earlier in these reasons and G was not to be a witness. Bringing her to court showed lack of insight on the part of the father. She was left in the precincts of the court with D, with whom she was estranged and the mother, with whom she was having issues. There was no issue that G, during the course of the years, provided to the father a ripped up letter from D and, D’s diary. In the notes from Queensland child safety authorities it shows G inappropriately provided a mobile telephone to the child which the father used to contact her.
The notes say:
Foster carer notified Department that a mobile phone had been found in [the child’s] drawer when putting clothes away. [the child] had already had her personal mobile phone confiscated when placed in out-of home care due to excessive phone contact with family and others. [the child] met with caseworker at the ICSSC at 3.15pm today to discuss the mobile phone-[the child] stated:
[G] waited till she heard the toilet flush and called [the child] into the room and said she could have the mobile phone to play games. [G] also said that the phone had some credit on it. She knew it was wrong to have the phone that’s why she hid it in her drawer and did not tell the Carer she had it. When she noticed it missing she knew ……....found it and did not say anything to …………but told her Dad on the next visit (Tuesday 2/4/2006).
[the child] also wanted to know why her Mum and [D] could ring whenever they wanted and her Dad could not.
…….[the father] told the caseworker he advised [the child] not to get caught with the phone because it will be taken off her. [The father] had a number of unsupervised text conversations with [the child] in addition to the agreed one supervised contact. [35]
………[G] has in the past given [the child] notes and a mobile phone. [The father] used this mobile phone to send secret text messages to [the child] at night. When confronted by the department, [the father] used [G] as a scapegoat and stated that she ([G]) was of low intellect and did not understand. It should be noted that [G] did not contact [the child] on the mobile phone but [the father] did. [36]
[35] File note created by Ms P, Family Services dated the 3/5/2006.
[36] Ibid dated the 14 December 2006.
I accept that this is indicative of the father controlling G, he is manipulative of her and in that regard endeavoured to circumvent child protection authorities.
On the first day of the trial I asked Counsel what steps should be put in place for D’s evidence and whether different arrangement ought to have been made for her to give evidence bearing in mind her relationship with the parties and the sensitive nature of her evidence. No application was made to me in that regard by either the mother’s solicitor or counsel for the Independent Children’s Lawyer.
When D gave evidence the father moved position so that he could better see her, he glared at her and made shaking motions of his head during D’s evidence. I raised this issue with counsel for the father and took a short adjournment. The father was aware that I was concerned about the impact of a face to face meeting between him and D when she was to give evidence. Yet he still chose to act the way he did during the early part of that evidence until I raised it with Counsel. His demeanour has all of the indications of endeavouring to intimidate D while she was giving evidence. I have some regard to the father’s demeanour in terms of the outcome of this hearing although it was not determinative.
During the course of the trial, evidence was given by the mother, which was not challenged, that G had been raped by a stranger at the Gold Coast in about 2000 or 2001. The man who committed that offence was convicted.
Two expert reports were obtained, one from Mr E[37], a Forensic Psychologist and another from Dr R, a Psychologist.[38] There was no issue as to the expertise of the witnesses. Both were in the witness box together to give evidence concurrently. They were cross-examined by the Independent Children’s Lawyer and counsel for the mother and solicitor for the father.
[37] Annexure “B” (the report dated the 28 April 2008) of the affidavit of Mr E filed the 7 May 2008.
[38] Annexure “B” (the report dated the 5 November 2007) of the affidavit of Dr R filed the 19 November 2007.
Dr R expressed doubts in relation to the father’s accounts of his interaction with D but gave credit to the father that he was now receiving assistance. She considered the father had a low to moderate likelihood of offending in the future but felt that it was unlikely that the father would offend against the child, primarily because the father is the subject of such significant scrutiny. Dr R recommended that the father continued counselling and that the time he spends with the child be unsupervised once he attends counselling and is able to adequately address his “obsessive behaviours” in the therapeutic relationship.[39]
[39] Ibid at Page 12, paragraph 20.
At the commencement of her cross-examination Dr R expressed a view that supervision ought not to continue.
Dr R’s view was that the parties ought to attend a conflict resolution course and parenting post separation courses and that there should be no impediment to the father having regular unsupervised time with the child.
Both experts expressed concern if I found that the father became aroused in the company of the child. Now having made that finding I have real concerns that the child is at risk of sexual abuse by the father if left in his unsupervised care.
I do not accept that the father has been straight forward with the court and, as I have said earlier, I am concerned that his acknowledgment of the inappropriateness of letters was more for forensic purposes than as a consequence of any review he had in terms of his behaviour. He provided self-serving explanations, and as I have said elsewhere, I do not accept his explanations for his erections in terms of his contact with the child.
It is also of concern that with those erections, at the time that he was under significant supervision in terms of his involvement with the child.
I have considered all of the facts and findings in this case in terms of the various factors of which I am obliged to consider under s60CC(2), (3), (4) and 4(a). I will address some of these particularly in regard to the various provisions however in reaching the conclusions I have considered all of the factors against all of the evidence and findings and vice versa.
Section 60CC(2)(a).
The primary consideration of the benefit of the child having a meaningful relationship with both of the child’s parents.
In terms of this factor I determine that it is in the best interest of this child to have a meaningful relationship with both the father and the mother. As I have said elsewhere in these reasons, but for my concerns about the father being a risk to the child in terms of sexual abuse or inappropriate sexualised behaviour I would have made an order for equal parenting time or significant or substantial parenting time.
Section 60CC(2)(b).
The primary consideration of the need for the child to be protected from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.
Bearing in mind all of the findings in these reasons, including but not limited to my positive finding of the father’s sexual abuse of D, the father’s inappropriate letters to D, the father’s endeavours to alienate D from her friends and others during her pre-adolescent and adolescent years, the father’s fantasies and infatuation with D in circumstances when he knew or ought to have known that it was entirely inappropriate, the father’s refusal to acknowledge his inappropriate behaviour, except in regard to the letters which were in essence forced upon him in consultation with Dr R, the possibility of a sexualised relationship between the father and G (bearing in mind G’s significant health difficulties and her intellectual impairments), that the father became aroused inappropriately in close contact with the child, the father’s refusal to acknowledge that arousal, the father’s inappropriate interaction through the child with kissing on the mouth and attempting to kiss her on the mouth and invasion of her personal space which was not acknowledged by the father and in circumstances where he ignored requests by supervisors not to do so.
The expert evidence is significant but at the end of the day it is my determination as to whether the child is at unacceptable risk of abuse at the hands of the father. I believe the child would be at unacceptable risk of abuse by the father.
The mother did not offer the protection to D which she ought to have done bearing in mind the history of abuse suffered by that child. The mother did not support D when the first allegations were raised in 2001 and it seems that the only time she commenced believing D was at the time that her relationship with the father was failing in about 2004.
Even then the mother failed to offer the protection one would have anticipated from a mother. She allowed both G and the child to travel overseas with the father on two occasions in 2005 and, when the child was acting out following the difficult circumstances of the separation in January 2006, placed the child in a taxi and sent her to the care of the father knowing full well the allegations that were in place. It seems that the mother has in terms of her relationship with the father and now in terms of the relationship with her husband Mr Park, put the interests of those relationships or those partners above those of her children. In that regard her support of the father in the face of the allegations made by D in 2001 is one example; the other, being her banning of G from her home because of some indiscretion with her husband Mr Park in circumstances where she professes to be concerned that G is being sexually abused by the father is, quite frankly, bizarre.
They are examples of the mother not offering protection to which one would normally anticipate children are entitled to receive from a parent. However, the relationship between the mother and father has now deteriorated to the level where their relationship is unlikely to ever be restored and the mother will offer protection by way of supervision to the child, at least against the father.
Section 60CC(3)(a)
(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;
In her submissions the independent children’s lawyer relied upon the report of Dr R who at page 6 paragraph 40 described the child as “articulate when discussing her life in general and her desired outcomes with respect to the level of contact she wishes to have with both parents”.
It is not in issue that the child has a close relationship with the father. He was significantly involved in her upbringing and was possibly the primary carer of the child during the last years of the relationship. The child knows of the allegations against the father from child welfare workers, the mother and her sister D. The child still wants a longer and more meaningful relationship with the father.
I give the child’s views significant weight but they must be weighed against the risk of abuse. I will endeavour to put in place orders which will enable the father to attend school, sporting and other public gatherings so that the child can spend as much time with the father where possible but in circumstances where the child is safe.
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);
There is no issue that there is a benefit of the child having a meaningful relationship with the father. The impact of supervised time between the father and the child will diminish the ability for a meaningful relationship between the two to grow and prosper. I am conscious of that in coming to the decision I have in these proceedings.
As I have indicated earlier the child has a close relationship with both parents. They live in a small community about seven houses from the bus stop. The mother’s ability to care for the child in the last year or so of the relationship was very poor and was primarily left to the father. But for my findings as to unacceptable risk, this would have been a case where I would have put in place equal time, bearing in mind the age, maturity and views of the child and the other factors. However, because of the circumstances of this case I am unable and unwilling to do so because of my finding that the child is at unacceptable risk of sexual abuse in the unsupervised care of the father.
The child has a good relationship with the mother and a good relationship with her sisters D and G. However, her relationship with G is inhibited. The mother has made a poor decision in preventing G from attending the home where she lives with her present husband, Mr Park. This is an example of the mother placing her own concerns and that of her partner above those of her children. Fortunately G does attend at the times of the child’s supervised visits with the father. This will no doubt continue, bearing in mind the orders made in this proceeding.
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;
Although there is significant conflict and animosity between the parties I am satisfied that the father is willing to facilitate and encourage the relationship between the child and the mother. I do not accept that the mother’s submission that she will facilitate a relationship between the child and the father. Her arbitory determination to reduce the time that the child sees her father from two hours to one and a half hours is an example of this and her deep resentment of the father for his abuse of D predicate against this.
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;
There will be a detrimental effect on the relationship between the child and the father and between the child and G by virtue of this decision. Their relationship was a good relationship and was stagnated even by the best arrangements of supervised time. However that has to be weighed against the risk of the father sexually abusing the child.
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;
There are no practical difficulties with regard to the child spending time with and communicating with the father bearing in mind the close proximity in which they live to one another. The difficulties arise out of the issues I have discussed above and the need for supervision. I have rejected the submission that the supervisor ought to have social science qualification and the orders I will put in place will allow for a suitable impartial and careful supervisor from the local area to be employed. That supervisor can be either a volunteer or paid and need not have any health qualifications.
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;
Subject to the limitations which I have elsewhere discussed in these reasons, both parents have the capacity to provide for the needs of the child including her emotional and intellectual needs. This must be seen as subject to the findings I have made with regard to the father and the mother in terms of their care of the child so far.
I have concerns about the father’s insights into parenting. I accept that he endeavoured to show to G, the mother and D a violent and sexually explicit movie upon his return from East Timor. I accept the evidence of D that the father had seen the movie and notwithstanding its nature was prepared to show it to D who was about 15 and G who has an intellectual age of 12 to 13 but who was aged 16 or 17. When asked about this, the father endeavoured to justify showing such movies to a 15 year old but not to a 12 year old. That reflects poorly on his ability to parent.
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;
During the course of the trial I raised with counsel my concerns about the age and maturity of the child and the proximity of the parties’ homes and that it may well be that she may try to spend unsupervised time with the father notwithstanding the orders made by this court. I believe that is not in the child’s best interests to spend unsupervised time with the father and as a result I will put in place an order restraining the father from at any time having the child in his unsupervised care so that it is not simply a decision of the child if there is unsupervised time but it will be a factor, that is that he would be breaking an order of this court if he choses to ignore this effect, (I do not know whether he will or will not do so) but for the protection of the child I intend to put in place such an order. I have listened to the submissions and carefully considered the submissions of the father’s counsel’s opposition to such an order but notwithstanding those submissions I propose to put these orders into place.
60CC(3)(h)
if the child is an Aboriginal child or a Torres Strait Islander child:
(i)the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)the likely impact any proposed parenting order under this Part will have on that right;
This is not a relevant consideration in these proceedings.
60CC(3)(i)
the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
In relation to this I repeat the matters I have set out elsewhere in these reasons.
60CC(3)(j) & (k).
(j) any family violence involving the child or a member of the child’s family;
(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;
There is no family violence order. What is clear is that the relationship between the father and mother was punctuated by verbal and physical conflict. The father acknowledges that he pushed and punched the mother but says this was in response to her equally physical attacks on him. D’s evidence, which I prefer to that of either parent, is that the father is often physically abusive and that she endeavoured to come between the father and the mother. In particular I accept her evidence set out in paragraphs 85, 86, 87 and 89 of her affidavit filed the 19 May 2008. I find that the child is not at risk of physical violence from the father but I have concerns about the child seeing the violent interaction between the father and the mother, the detail of which is contained earlier in my reasons.
60CC(3)(l)
whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
If I put in place some orders which allowed the development of unsupervised time, as I have said earlier, it would not be protective of the child and with the lack of insight of both parents a failure to put in place strict guidelines would leave the child at risk and may lead to institution of further proceedings.
In view of the father’s history of sexual and sexualised behaviour I do not accept that he is likely to change. As such a regime towards unsupervised time would simply invite the parties back for further litigation.
60CC(3)(m)
any other fact or circumstance that the court thinks is relevant.
I have considered all of the relevant evidence before me.
I have had regard to all of the other factors, particularly the nature of the relationship between the child and the father and the need for her to have a continuing relationship with D and G.
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
(iv)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.
Sec 60CC(4A)
If the child's parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.
Both parents consented to an order being made in early 2006 placing the child in foster care for one year. She remained there from either late 2006 or until early January 2007. Both parents communicated and spent time with the child during that period and both parents have participated in decision making for her since that time.
No serious complaints were made about the child support provided by the father although there are limited funds available for paid supervision between the father and the child.
I have had regard to the events that have happened and circumstances that have existed since separation occurred in January 2006.
I have made an order that the child spend such other supervised time with the father as is arranged between the parents. To that end I make it clear that if there are opportunities for the child to spend time with the father at public occasions or other supervised occasions that the mother ought to allow those times and that if she does not do so it will no doubt pre-empt further proceedings in this court.
In coming to the conclusions in these proceedings I have reflected on all of the evidence to consider the extent to which the child’s parents have fulfilled or failed to fulfil their responsibilities as parents as set out in s60CC(4). In having regard to all of the material before me and all of the findings of fact I determine that in my view the best interests of the child are served by the orders set out at the commencement of these reasons.
CONCLUSION
I have accepted the evidence of D. This evidence is in many ways objectively supported by the letters from the father, his special treatment of D, the father’s lack of insight into the letters, the long history of complaints which are not made by one person but made by a number (D, her aunt, the mother), his continuing failure even in 2006 to understand or have any insight into his impact upon other people, such as his continued kissing on the lips of the child and invading her personal space. Therefore I am satisfied on balance to the standard as set out by the High Court in Briginshaw and having regard to section 140(2)(c) of the Evidence Act1995 and further that the father sexually abused D as asserted by D. I do not put significant weight on the evidence of the mother although I give it some weight.
The evidence of the experts is that whilst even if the father did sexually abuse D there is a “low risk” that he would sexually abuse the child because she is his own daughter. In terms of this questions were asked of the experts as to whether their concerns would be greater if I found that the father’s penis became erect at times when he touched or closely became interacted with the child as asserted by the Child Welfare Officers. Both experts expressed concerns if I found that that had occurred.
The mother says she saw evidence that the father’s penis become erect[40] and whilst generally I have concerns about her evidence I accept her evidence in that respect.
[40] Paragraph 44(c) of the affidavit of Ms Park filed on the 20 May 2008.
There is evidence of two independent observers, both of whom was aware of the father’s hernia but was still able to clearly state that their observation was that the father’s penis became erect. Similarly the mother who has observed the hernia over many years was able to distinguish between the lump constituting the hernia and the apparent erect penis.
The Independent Children’s Lawyer submitted that there were four witnesses to the allegation the father displayed sexual arousal in the presence or involved discussion of the child. There are in fact five witnesses which I have referred to above, the fifth of whom is the Child Safety Support Officer, F, referred to in paragraph 5 of the affidavit of Ms P.
In cross-examination the two experts expressed their views as to how the behaviour of the father, if established, could be modified. Mr E discussed a system of ongoing counselling for the father in circumstances where if the counsellor formed a view that the father was not accepting of counselling or was not attending that then there ought to be supervision of the child. Dr R believed the father should have ongoing counselling to deal with these issues.
Some of this evidence seemed to be more focused on the needs of the father rather than the protection of the child. My concern is to ensure that the child is protected from sexual abuse. The task of a court is to put in place orders which are in the best interests of the child which is not the only consideration but the paramount consideration. Whilst I have significant regard to the evidence of the experts I am satisfied that the child is at unacceptable risk of sexual abuse at the hands of the father and that the protection should remain in place, by way of supervision, until the child attains the age of 18 years.
There was evidence by the experts as to the nature of the relationship between the child and the father. It is clearly a warm and loving relationship where the child has no fears of the father. There was a debate as to whether the protective skills given to the child and her age was such that she could feel protected in terms of inappropriate advances by the father. This has to be weighed against her knowledge of the issues in these proceedings and the realisation that she must have, that is that if any suggestion is made that the father acts inappropriately with her it would mean the end of any unsupervised time. The evidence of the experts is of course that the nature of sexual abuse is the exercise of power and a father is in a significant place to exercise power.
The experts agreed that the child would need ongoing training in relation to protective measures she can put in place to the extent that it was thought, at least at the beginning by Mr E that the times should be during the day as there were more protective devices available to the child during the day. My concern is that this puts enormous pressure on the child in circumstances where I have found that the father does engage in inappropriate sexualised behaviour with adolescent and pre-adolescent children. This in circumstances where the father sexually abused D when she was pre-adolescent and had, at least, fantasies about her in her post-adolescent years up to the time when D left the family home in about July 2004.
Counsel for the father said that I ought to adopt almost a criminal standard of proof in relation to such a determination relying on the principles set out by the High Court in Luxton v Vines (1952) 85 CLR 352 at page 358 where the High Court said:-
The test to be applied in determining in cases like this whether circumstantial evidence suffices to support a finding that negligence for which the defendant was responsible for the vicariously or otherwise occasioned the injury complained of was restated recently in this Court in “Bradshaw –v- McEwan Pty Ltd” and for the purpose of this case it is enough to set out the following passage from the judgment:-
Of course as far as logical and consistency goes, many hypothesis may be put which the evidence does not exclude positively. This is a civil and not a criminal case. We are concerned with the probabilities, not possibilities. The difference between the criminal standard of proof and its application to circumstantial evidence and the civil is that in the form of the facts must be such as to exclude reasonable hypothesis consistent with innocence, while in the later you need only circumstances raising a more probable inference in favour of what is alleged. In questions of this sort, where direct proof is not available, it is enough if the circumstances appear in the evidence give rise to a reasonably and definite definitive influence. They must do more than give rise to a conflicting influences of equal degree of probability so that the choice between them is a mere matter of conjecture: see per Lord Robson, Richard Evans & Co. Limited –v- Astley where circumstances are proven in which is it reasonable to find a balance of probabilities in favour of the conclusions sought, then, the conclusion may fall short of certainty, it is not to be regarded as a mere conjectural surmise : …
In this case the assertion of counsel for the father is that the explanation of the large “three quarter football” size hernia is a significant hypothesis which cannot be discounted and that there is no direct evidence of an erect penis. With respect to the counsel for the father, I reject that submission as to the evidence. The evidence is clear and unambiguous by at least four of the witnesses that they were aware of the hernia and had observed the hernia. The evidence of the description of the lump to which they concluded amounted to an erect penis was in a different area and was in circumstances which were different to that suggested by the father. I am more than comfortably satisfied that the father displayed sexual arousal as asserted by the three child welfare officers, the mother and Mr Park.
In coming to this conclusion I have regard to the delay in the father having this hernia treated notwithstanding that he knew that the question of his arousal in the question of the child was an issue for some two years or more. The father was referred for operative treatment in 2006 but did not avail himself of that process.
The father, knowing that the welfare officers were aware of his hernia still crossed his legs, covered his groin and took steps to cover it.
For the reasons set out above and my findings that the child is at risk of sexual abuse at the hands of the father I consider that it is not in the child’s best interest for her to spend equal, substantial or significant time with the father. However, the child should be entitled to communicate with father by way of telephone and or email and or SMS should she wish to do so.
Accordingly I will be making orders that the child be able to do so. I will also be making orders that the father should be entitled to communicate with the child by way of providing gifts and greeting cards to the child on special occasions.
In addition I will be making orders that the father be entitled to attend school performances or other social occasions such as open day activities, sport and swimming carnivals to observe and interact with the child. However, this order will be subject to the school principal and the teachers being given copies of the reasons upon which the orders are based and acknowledging that the father cannot be left alone or isolated with the child at any time, although there is no reason why he cannot talk to and interact with her in public areas.
Further I will be making orders that the mother authorise the school to forward to the father copies of the child’s school reports or written communication regarding her progress at school.
There is no issue that the Independent Children’s Lawyer should inform the child of the outcome of these proceedings. There is no issue that the child needs ongoing counselling and in that regard there should be an order that the Independent Children’s Lawyer do this with liberty for parties to apply in that regard.
Having regard to the evidence and the findings I determine that the child will spend supervised time with her father until she attains the age of 18.
I certify that the preceding one hundred and eighty six (186) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin.
Legal Associate : …
Date: 31 July 2008
Key Legal Topics
Areas of Law
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Family Law
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Evidence
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Natural Justice
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Procedural Fairness
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Statutory Construction
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Duty of Care
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