Sachs and Monaghan
[2013] FCCA 59
•7 May 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SACHS & MONAGHAN | [2013] FCCA 59 |
| Catchwords: FAMILY LAW – Parenting orders – three children aged 9, 7 and 3 years living with the mother following separation – father spent limited time with the children but no time since late 2011 – allegation by middle child of sexual and physical assault upon her by the father – mother alleges chronic and serious domestic violence toward her by the father during the relationship – father denies all allegations – unacceptable risk – best interests of the children – undefended hearing. |
| Legislation: Family Law Act 1975 (Cth), Part VII Federal Circuit Rules 2001, Rules 13.03 A and 13.03B Evidence Act 1995 (Cth) Section 140 Cases cited: |
| Applicant: | MR SACHS |
| Respondent: | MS MONAGHAN |
| File Number: | NCC 3208 of 2010 |
| Judgment of: | Judge Coakes |
| Hearing dates: | 19 & 20 December 2012 |
| Date of Last Submission: | 20 December 2012 |
| Delivered at: | Newcastle |
| Delivered on: | 7 May 2013 |
REPRESENTATION
| The Applicant: | No appearance |
| Counsel for the Respondent: | Mr M Graham |
| Solicitors for the Respondent: | Gianacas Argiris McDonald |
| Counsel for the Independent Children's Lawyer: | Ms D Burns |
| Solicitors for the Independent Children's Lawyer: | Sharon Moore Solicitor |
ORDERS
All previous parenting orders are discharged.
That the mother have sole parental responsibility for [X] born [in] 2003 (“[X]”), [Y] born [in] 2005 ([Y]”) and [Z] born [in] 2008 (“[Z]”)(“the children”).
That the children live with the mother.
That the children spend no time with the father.
That the children have no telephone communication including text and recorded message, or email, or Skype communication with the father.
That the father may communicate with the children only by sending them cards, letters and gifts, each by pre-paid post addressed to the mother at or just before Easter, each child’s birthday and Christmas and which are to be read initially by the mother and assessed as to suitability before giving to the child to whom the article is addressed.
That if the father includes in any such postal communication any message or gift which the mother or children’s therapist determines may be harmful to the child to whom the communication is addressed or to any of the children then the mother is at liberty to not give such card, letter or gift to the child or children as the case may be.
That the further amended initiating application filed by the father on 2 February 2012 is dismissed for want of prosecution.
That each parent is to advise the other of any change of that parent’s residential address within seven (7) days of such change taking place and advising particulars of the new residential address.
That within 14 days of the date of the making of these orders the Solicitor for the Independent Children's Lawyer is to send a sealed copy of these orders by pre-paid post to the father at his last known residential address.
NOTATION
That members of the paternal family may forward to the children or any of them postal communications of the type referred to in Order 6 above but under the same conditions pursuant to Order 7 above.
IT IS NOTED that publication of this judgment under the pseudonym Sachs & Monaghan is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT NEWCASTLE |
NCC 3208 of 2010
| MR SACHS |
Applicant
And
| MS MONAGHAN |
Respondent
REASONS FOR JUDGMENT
Introduction
These proceedings concern the three children of the relationship between the parties. Those children are [X] born [in] 2003 (“[X]”), [Y] born [in] 2005 ([Y]”) and [Z] born [in] 2008 (“[Z]”). At the time of the hearing [X] was 9½ years of age, [Y] was 7½ years of age and [Z] was 3 years and 11 months of age.
The father commenced proceedings when he filed his initiating application in [M] Local Court on 19 November 2010 seeking final orders that all three children live with him, that he have sole parental responsibility for both the long term and the day to day matters concerning their care, welfare and development and that the children spend supervised time with the mother supervised by the father or his nominee.
In her response filed in the same Court on 25 November 2010 the mother sought final orders that all three children live with her, that she have sole parental responsibility and that the children spend supervised time with the father through a Domestic Violence Support Officer. At that time, the mother was representing herself.
The proceedings were transferred from the Local Court at [S] on 2 December 2010 to the Federal Magistrates Court at Newcastle following the making of interim consent orders that the parents have equal shared parental responsibility, all three children to live with the mother and with the father to spend time with the children in the presence of a supervisor approved by the mother and with some prescribed defined periods of time, and with telephone communication. A number of practical parenting orders were made and with both parties restrained from consuming alcohol or using prohibited drugs when the children were spending time with that party.
Following the preparation of a second Family Report by Mr P, a Regulation 7 Family Consultant, after interviews by Mr P of the parents, the father’s De Facto partner Ms B and [X] and [Y] I was concerned that Mr P reported that [Y] had apparently disclosed sexual abuse to a cousin of the mother in April following the last Court appearance of the parties at that time. Mr P reported that it appeared that the allegation made by [Y] and substantiated by her older sister [X] was subsequently confirmed by [Y]’s disclosure to Ms M, the children’s Psychologist.[1]
[1] See paragraph 10 of the Family Report of Mr P released 24 July 2012.
Mr P observed that it was clear the father was not aware of the sexual abuse allegations made against him by [Y].
Mr P, after talking to Ms M reported that JIRT had interviewed [Y] but no disclosure was made and no further action had been pursued.
Mr P, in his evaluation, concluded that although [Y]’s disclosure to JIRT was unclear and unsatisfactory insofar as any criminal prosecution may be concerned, [Y]’s disclosure to the mother’s relative and subsequently to Ms M raised extreme concern about the safety of [Y] and her siblings whilst being in the father’s care[2].
[2] See paragraph 45 of the Family Report of Mr P released 24 July 2012.
Mr P recommended that the children spend no time with the father pending the final hearing.
I was concerned as to the release of the report to the parties.
On 11 July 2012 I made orders in chambers that the children be separately represented and released the Family Report only to the Independent Children's Lawyer.
On 26 July 2012 orders were made by consent, and when the father was represented, that all previous parenting orders be discharged, that the children live with the mother and that she have sole parental responsibility for them and that the Family Report be released initially only to the Solicitors.
Orders were made restraining the father from spending time with and attempting to contact or to communicate with the children and the mother, and a further order was made restraining the father from visiting the mother’s home in [E] or any other place where the mother and any of the children were residing or staying from time to time. The father was further restrained from coming within or remaining within 100 metres of any school, preschool or day care centre attended by any of the children.
Later in the morning, I made an order that the parties Solicitors could discuss the Family Report and show a copy to their clients but were restrained from giving them a copy to take away.
The matter was adjourned to 13 December 2012 for a final hearing and comprehensive directions were made for the filing of affidavits and other material.
The father did not file any affidavits in accordance with directions or any further amended application.
On 7 November 2012 the Solicitors acting for the father, Curtis Delaney Gray filed a notice of withdrawal from acting for the father, the notice of intention to withdraw having been sent to the father on 31 October 2012.
At a directions hearing on 8 November, when the father attended in person and by telephone, I vacated the hearing dates of 13 and 14 December and listed the matter for 19 and 20 December noting that the father had moved to [G] and was to see Mr Gray that day, 8 November in relation to his affidavits to be filed in support of his case.
The father swore his affidavit on 12 December and which was filed on 17 December together with an affidavit of the paternal grandmother also sworn 12 December and filed 17 December. I will refer to those affidavits later in these reasons for judgment.
When the matter was called on the first day of hearing, 19 December the father did not appear but his mother, Ms S asked to be heard and I gave her leave.
Ms S produced a hand written letter, which she acknowledged writing to the effect that the father’s legal representative had withdrawn on 17 December and therefore sought an adjournment of the final hearing to enable him to obtain another Solicitor.
The father was telephoned by the court and I had a conversation with him when he confirmed that he would like an adjournment for the reason that he no longer had any Solicitors and that Mr Gray had withdrawn on 17 December. The father explained that Mr Gray had been re-engaged and had prepared an affidavit but it had been sent to the wrong email address and the father did not receive it until mid December, when Mr Gray informed the father that he was again withdrawing.
When asked by me why the father was not in Newcastle at court the father said:
“I’m not happy about the farcical allegations made by the mother. I don’t want to be anywhere near her”.
When asked again by me why he was not at court he said:
“I don’t like the… I don’t want to turn into what she’s made me out to be. I’m not happy”.
Mr Graham, Counsel for the mother opposed the father’s application for an adjournment. Ms Burns, Counsel for the Independent Children’s Lawyer indicated it was a matter for the Court.
I delivered short reasons for judgment for refusing the application for an adjournment and invited the father to appear by telephone but he rang off terminating the telephone call from the court saying shortly before 10.30am
“All I’d like to do is see my kids”.
The Court telephoned the father on the same telephone number shortly after the first call but the call was not answered. I inferred from the father’s failure to answer the telephone call that he had no wish to appear.
Consequently, the matter proceeded in the absence of the father as an undefended hearing. The rules of this court provide in Rule 13.04A and 13.03B for matters to proceed to finality when a party is in default and enable the court to make orders upon the default of appearance of such party.
No useful purpose is served in setting out the provisions of such Rules; suffice to say that the father is in default of his obligations and did not appear at the hearing.
The respective applications at the hearing
As the father did not appear at the hearing I will formally make an order dismissing his further amended initiating application filed 2 February 2012 for want of prosecution.
In her further amended response filed 28 September 2012 the mother sought orders that she have sole parental responsibility for the children, that they live with her, that the father spend no time with the children and that she inform the father if any of the children are seriously ill or require admission to hospital.
The Independent Children’s Lawyer held a preliminary view that if the court accepted evidence as to disclosures of family violence by the father toward the children with consequent psychological harm then that would preclude the father from having any form of ongoing relationship with the children.
At the conclusion of the evidence, the Independent Children’s Lawyer prepared a draft minute of order[3] proposing that the mother have sole parental responsibility for all three children and that they live with her and spend no time with the father. The Independent Children’s Lawyer proposed that the children have no telephone or other electronic communication with the father but that he could send postal communication in the form of cards, letters and presents to the children addressed to the mother for vetting by her.
[3] See exhibit ICL1
The mother supported such proposals but with such communication to take place at the time of the children’s birthdays and Christmas.
Existing orders
On 2 December 2010 a consent order was made in the Local Court at [S] as referred to in Paragraph 4 above.
Upon the transfer of the matter to the Federal Magistrates Court of Australia it was listed for hearing on 6 February 2012 for two days as to parenting which, on 7 December 2011 was vacated as the matter was not ready to proceed.
The matter was listed for 10 April 2012 for two days with fresh directions for filing material.
On 10 April the matter was again vacated for the reason it was not ready to proceed that day and a fresh family report ordered with a final hearing listed for 13 December.
On 26 July 2012 orders were made by consent as referred to in paragraph 14 above.
On 8 September 2010 at [E] Local Court an apprehended violence order was made for the protection of the mother and the three children against the father for a period of twelve months with the standard orders 1(a), (b) and (c) and a further order that the defendant (the father) not destroy or deliberately damage or interfere with the property of the protected persons
Background facts
The father is 38 years of age and at the time of the hearing was living in a rented home at [G] with his partner Ms B and her children by previous relationships, [A] aged 12 years and [B] aged 20 months, and the child of their relationship namely [C] who was born [in] 2012.
It was unknown whether the father was working at the time of the hearing.
The mother was 33 years of age at the time of the hearing living in a rented home at [E] where she has lived for some years and which was the former home of the parties.
There is a dispute on the evidence as to when the parties’ commenced cohabitation with the mother asserting it was in late 1999 but the father asserting 1991. In the absence of the mother’s assertion being challenged I prefer the mother’s evidence. The parties were therefore a little more than 20 years of age at the time of cohabitation.
There is a dispute as to when separation occurred with the mother asserting that a final separation took place on 23 July 2010 and the father asserting it took place early in November 2010. Again, I prefer the mother’s evidence which is unchallenged. It seems there may have been an attempted reconciliation on one or two brief occasions between July and November.
There are three children of the relationship, namely [X], [Y] and [Z] to whom I have referred. At the time of the hearing [X] was in year 4 at [E] Public School, [Y] in year 2 and [Z] attending the [omitted] Early Learning Centre on Mondays and Fridays. [Z] had a medical condition affecting her eye sight and for which she had been under the care of a specialist which required eye surgery to prevent her from becoming permanently cross eyed.
The father has re-partnered with Ms B.
The mother has not re-partnered.
The evidence
In the mother’s case I read the following documents filed on her behalf:
a)Her affidavit sworn 8 March and filed 9 March 2012.
b)Her affidavit sworn 17 October and filed 18 October 2012.
c)Notice of child abuse or family violence filed 9 March 2012.
d)Affidavit of Ms M, Psychologist sworn 6 March and filed 9 March 2012.
e)Affidavit of Ms M sworn 18 October and filed 19 October 2012.
There were three exhibits:
a)M1 – Copy of letter 12 December 2012 from CDG Law to the mother’s Solicitors advising unable to obtain proper instructions from the father and no longer able to act for him.
b)M2 – copy of certificate under section 116(2) Child Support (Registration & Collection) Act certifying arrears of child support of $20,105.21 due by the father as at 18 December 2012.
c)ICL1 – draft minute of orders proposed by the Independent Children’s Lawyer.
I deemed it appropriate to read an affidavit sworn by the father on 12 December and filed 17 December 2012 and an affidavit by his mother Ms S also sworn 12 December and filed 17 December 2012.
The mother gave evidence in chief and was cross examined by the Independent Children’s Lawyer and I had the opportunity to observe the mother give her evidence.
Evidence was also given by the mother’s and the children’s treating Psychologist, Ms M who was cross examined by the Independent Children’s Lawyer.
Also in evidence and by consent were the two family reports prepared by Mr P, the first of which was published on 24 June 2011 and the second on 24 July 2012.
Mr P was cross examined by Counsel for the mother and the Independent Children’s Lawyer
The issues
It seems to me the issues are these:
a)What are the appropriate parenting arrangements for [X], [Y] and [Z] both in the short term and the long term;
b)Is there any, or sufficient evidence to conclude that the father is willing and able to have a relationship with the children;
c)What is the nature of the relationship between the parents and does domestic violence, if established, render it inappropriate for there to be equal shared parental responsibility for the longer term decisions;
d)Does the father represent any risk to any of the children and if so, what is the nature of the risk and does it amount to an unacceptable risk of harm;
e)If it is established that the father represents a risk to any of the children, is it appropriate that the father communicate with any of them and if so, a determination of appropriate form and means of communication; and
f)If it is established that the father represents a risk to any of the children, does the mother have the capacity to protect the children from the father.
The Relevant Law
General principles
I have regard to Part VII of the Family Law Act. The significant sections are, and to which I must have regard, s.60CA which provides that:
“In deciding whether to make a particular parenting order in relation to a child the Court must regard the best interests of the child as the paramount consideration.”
I must consider, in determining a child's best interests, the matters set out in s.60CC. There are two 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.”
There are a number of additional considerations in s.60CC(3) to which I must have regard insofar as they are relevant and I must also have regard to s.60CC(4).
I must also have regard to s.60B which sets out the objects of Part VII and the principles underlying those objects. I must have regard to s.61DA which provides for a presumption of equal shared parental responsibility when a parenting order is made, save that the presumption does not apply when there are reasonable grounds to believe that there has been abuse of the child or family violence. The presumption may also be rebutted if there is evidence to satisfy 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.
The relevance of the presumption of equal shared parental responsibility where it does apply or is found to apply is that the Court is then obliged to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend equal time with each of the parents. If equal time is not in the interests of the child or reasonably practicable, the Court must go on to consider making an order, if it is consistent with the best interests of the child and reasonably practicable, for the child to spend substantial and significant time with each of the parents[4].
[4] Subsection 65 DAA Family Law Act1975
It seems to me that there is a shift toward the Court being required to consider in a much more practical manner how a child's development can be nurtured and promoted by being exposed to and enjoying in a beneficial sense all the aspects of living with each parent. It seems to me that this requires an involvement in the whole of the ordinary household routine where it is appropriate. See the Full Court decision of Goode v Goode[5].
[5] Goode & Goode [2006] FamCA 1346; (2006 FLC 93-286; (2007) 36 Fam LR 422
Principles in relation to alleged sexual abuse
The principles to be applied in determining whether a child should spend time with a parent when the issue of sexual abuse or inappropriate sexual behaviour is alleged and which is asserted to amount to an unacceptable risk of harm to the child if the child spends time with a parent was stated by the High Court in M v M (1988) 166 CLR 69; FLC 91-979; 12 Fam LR 606.
The High Court held:
“22. In considering an allegation of sexual abuse, the court should not make a positive finding that the allegation is true unless the court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v. Briginshaw [1938] HCA 34; (1938) 60 CLR 336, at p 362. There Dixon J. said:
"The seriousness of an allegation made, the
inherent unlikelihood of an occurrence of a given
description, or the gravity of the consequences
flowing from a particular finding are
considerations which must affect the answer to the
question whether the issue has been proved to the
reasonable satisfaction of the tribunal. In such
matters 'reasonable satisfaction' should not be
produced by inexact proofs, indefinite testimony,
or indirect inferences."
His Honour's remarks have a direct application to an allegation that a parent has sexually abused a child, an allegation which is often easy to make, but difficult to refute. It does not follow that if an allegation of sexual abuse has not been made out, according to the civil onus as stated in Briginshaw, that conclusion determines the wider issue which confronts the court when it is called upon to decide what is in the best interests of the child.
23. No doubt there will be some cases in which the court is able to come to a positive finding that the allegation is well-founded. In all but the most extraordinary cases, that finding will have a decisive impact on the order to be made respecting custody and access. There will be cases also in which the court has no hesitation in rejecting the allegation as groundless. Again, in the nature of things there will be very many cases, such as the present case, in which the court cannot confidently make a finding that sexual abuse has taken place. And there are strong practical family reasons why the court should refrain from making a positive finding that sexual abuse has actually taken place unless it is impelled by the particular circumstances of the case to do so.
24. In resolving the wider issue the court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assessing the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child's welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access. In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access. Even in such a case, however, there may be a risk of disturbance to a child who is compulsorily brought into contact with a parent who has sexually abused her or whom the child believes to have sexually abused her. But that is not the issue in this case.
25. Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. The degree of risk has been described as a "risk of serious harm" (A v. A [1976] VicRp 24; (1976) VR 298, at p 300), "an element of risk" or "an appreciable risk" (Marriage of M (1987) 11 Fam LR 765, at p 770 and p 771 respectively), "a real possibility" (B. v. B. (Access) (1986) FLC 91-758, at p 75,545), a "real risk" (Leveque v. Leveque (1983) 54 B CLR 164, at p 167), and an "unacceptable risk" (In re G. (a minor) (1987) 1 WLR 1461, at p 1469). This imposing array indicates that the courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child's paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.”
The onus of proof is the civil standard of proof in accordance with Section 140 of the Evidence Act 1995 (Cth).
In Re W (Sexual abuse: standard of proof) [2004] FamCA 768 the Full Court said as follows:
“18. In setting out those authorities it does not appear that His Honour paid any attention to the views of the Full Court in WK v SR where the Court emphasised the very high standard by which a Court needs to be satisfied on the balance of probabilities that something has actually occurred. Unless such a rigorous approach is taken, where the often inevitable result of a positive finding is cessation of the relationship between parent and child, there is a major risk of inflicting upon the parent and child the disastrous effects of a positive finding that is reached in error.
19. The termination of a worthwhile relationship between the parent and child ought in most cases be the course of last resort. The Court should not shy away from reaching such a result in an appropriate case but at all times Judges should be conscious of the adversarial or inquisitorial systems often reach results that are artificial. The truth does not always come out. A false negative finding accompanied by appropriate safeguards as to the future relationship between parent and child, such as adequate supervision to guard against possible abuse, may be far less disastrous for the child than an erroneous positive finding that leads to a cessation of the parent- child relationship. The Court needs to remain conscious of this imperfection at all times.”
In a 2010 case, Her Honour Justice Ryan[6] when commenting on the onus of proof said:
“[75]……… The Full Court in Johnson and Page agreed with W and W (Abuse allegations: unacceptable risk) [2005] FamCA 892; (2006) 34 Fam LR 129; (2005) FLC 93-235 and said a Court will only make a positive finding that sexual or other abuse has happened when, by reference to s 140(2)(c) of the Evidence Act the judge “is satisfied to the highest standard, on the balance of probabilities abuse has occurred.”
[76] If the Court determines that it cannot or should not make a positive finding that there has been abuse, the Court must determine whether in all the circumstances there is an unacceptable risk of it. Where none, rather than some only, of the accumulation of factors considered satisfy the standard of proof it is generally accepted a judge should be cautious in reaching a conclusion that an unacceptable risk of abuse has been established. Whether or not there exists an unacceptable risk involves an evaluation of the nature and degree of the risk and whether, with or without safeguards, it is acceptable. The components, which go to make up that conclusion, need not each be established on the balance of probabilities. The Court may determine that the constellation of factors comprises an unacceptable risk even though none or only some are proved to that standard (Johnson and Page).
[6] Baker & Brothwick and Ors [2010] FamCA 1018
If the Court concludes on the whole of the evidence and after weighing the allegations and the evidence in support of such allegations that there is no unacceptable risk it is sometimes necessary to consider the separate issue of the parent’s belief in the occurrence of the events and which has particular application to the circumstances of this case.
In the Marriage of A (1998) FLC 92-800; 22 Fam LR 756 the Court said:
“The first enquiry is whether there is objectively an unacceptable risk. If there is the Court must take steps proportionate to the degree of risk. If there is not, the Court may then need to consider whether the residence parent has a genuinely held belief that such a risk exists and whether that will have a significant impact on that party’s capacity as the resident parent and so impinge on the best interests of the children. The Court then needs to take steps proportionate to that circumstance.”
The mother’s case
It is the mother’s case that there was ongoing and significant domestic violence by the father toward both her and the children during the relationship and which continued after separation.
It is the mother’s case that there was a violent incident in August 2010 when the father entered the home adversely affected by alcohol, demanded money from her, caused physical damage to the premises resulting in the children screaming, crying and being extremely scared. The mother subsequently took the children to their General Practitioner, Dr T for evaluation of their emotional anguish and affects of violent behaviour.
As a consequence of this incident, the mother obtained an apprehended domestic violence order[7] and the mother was referred by the Domestic Violence Support Group to Ms M, a Psychologist whom the children have seen on a number of occasions and continue to see, particularly [X] and [Y].
[7] See paragraph 40 above
The mother deposes in her affidavit sworn 8 March 2012 to becoming more confident with Ms M and discussing with her several deep seated memories which she had suppressed for a considerable period of time as to events of sexual degradation and non-consensual sexual abuse of her by the father.
The mother describes such acts commencing at about Christmas 2006 continuing until March 2008 and resuming again after the birth of [Z] from March 2009 until separation. The mother deposes to being sodomised regularly by the father with other unnatural acts to which she did not consent and which can only be described as abhorrent and grossly abusive and demeaning.
In his affidavit filed 17 December the father deposes to strenuously denying the mother’s allegations as to any sexual abuse on his behalf toward the mother and to such allegations being false in every respect.[8]
[8] See paragraphs 10 and 11 of the father’s affidavit sworn 12 December and filed 17 December 2010
However, I am unable to give the father’s denial any weight as to determining the truth as to what occurred. With the exception of the father’s denial, the mother’s evidence is unchallenged. Consequently, I find on the balance of probabilities the mother’s evidence is to be preferred.
The mother deposes in detail in her affidavit filed 9 March to the chronic exposure of the children to the father’s angry behaviour and outbursts of rage and harsh and inappropriate physical discipline amounting to assaults of [X] and [Y]. The mother gave evidence in cross examination that she had seen the father severely hit [X] with his hand on the legs and arms wherever he could get her and which had started when she was about three or four years of age.
The mother could not recall if [X] was clothed on each occasion but told the court that red hand marks were left where she had been hit but she could not recall any bruising. The mother said that she had asked the father to stop punishing the children like that to which the father responded:
“They are my kids and I’ll do what I want”.
The mother deposes to [Y] being verbally and physically abused by the father and perceived her as being treated less favourably by the father than [X]. The mother deposed to [Y] being more seriously affected and that she is now prescribed Epillium to not only lower her blood pressure but also to reduce her stress and anxiety, such medication commencing at the end of October 2011.
The mother deposes to [Z] waking up screaming but concludes it was difficult to ascertain whether she was having nightmares about her exposure or if they were bad dreams.
The mother deposes to [Y] describing how her father hit her on the back of the head five times at a birthday party on [date omitted] 2011 when the father had taken all three children to a birthday party for [X]. The mother also deposes to the father hitting [Z] in the back as recounted to her by [X] following her sticking her fingers in the cake.
In July 2011 the mother deposes[9] to the children being issued medical certificates that they were not to have contact with their father whilst undergoing psychological counselling with such medical certificate to be reviewed in March 2012.
[9] See paragraph 45 of the mother’s affidavit
The evidence establishes that the children have not spent any time with the father since mid 2011.
The mother deposes at length to the abhorrent behaviour to which both she and the children were exposed by the father.
The mother deposes further as follows[10]:
49. “As tension built in the relationship the father released his stress frequently by using emotional and or physical hostility on the family whilst blaming myself for having caused the need for him to become violent. The father would shortly thereafter make gestures as to how sorry he was and I candidly came to believe that I was at fault for this type of hostile behaviour.
50. “Whenever I came to the children’s aid the father would yell at me not to interfere and if I tried to persist I would be threatened with violence or have violence perpetrated on myself. I sincerely regret not being able to stand up to the father and provide the children with a safer living environment during the relationship. However now with the assistance of my Domestic Violence Counsellor I comprehend the indoctrinated state that the father had engineered to be in command by controlling the family unit and how I was simply unable to question his authority due to the father oppressive domination”.
[10] Paragraphs 49 and 50 of the mother’s affidavit filed 9 March 2012
Whilst the mother concedes that she did not always respond appropriately to the father, I accept the mother’s evidence as to the pattern of chronic serious domestic violence which prevailed in the household for which the father was primarily responsible and from which the mother felt she was unable to escape.
In her affidavit filed 9 March 2012 the mother deposes to her recovery from deep depression and now being extremely protective of the children’s health, welfare and schooling following her observation of their fragile state. All three children have now being patients of Ms M for which funding is obtained from Victims Services, New South Wales. On 7 July 2011, in her report from Ms M to the mother’s Solicitors, Ms M reports that all three children are showing signs of severe to extreme anxiety which in her opinion stemmed from their father’s abusive behaviour with such anxiety appearing to be reinforced by fortnightly visits the children were then having with their father.
Ms M notes that the children are reporting seeing and, or personally experiencing the unending abusive behaviour of their father.
Ms M expressed the view that visits with their father at that stage were counter productive to the children’s health, welfare and wellbeing and educational progress. Ms M expressed the view that until the father’s anger and psychological issues were resolved it was inappropriate for him to spend any time with the children. If those issues were resolved, Ms M expressed a view that it would be beneficial for the time between the children and their father to be supervised until such time as unsupervised access could occur.
In his letter dated 15 August 2011[11], the family’s treating General Practitioner, Dr T supported the conclusion of Ms M early in July that interaction between the father and his children was counter productive to their mental and physical health. Dr T wrote as follows:
“Behaviour modification, allowing appropriate and positive conduct to their future, maybe effected by Mr Sachs being motivated to make some changes. I believe that until that time, contact by phone and visits between the children and their father should be curtailed for the time being.
At this time I believe that supervised contact is inappropriate at least for three months, a reasonable time to expect changes to take place.”
[11] Attachment to Affidavit of Ms M filed 9 March 2012
In her report of 27 November 2011 to the mother’s Solicitors, Ms M writes as follows:
“The three children are now showing signs of extreme anxiety. They are fidgety during the day, restless at night and having night mares. Dr T, I understand has written an additional medical certificate for the children to have no contact with their father for a further three months. I totally agree with Dr T that for the children to have contact with their father appears to exacerbate their anxiety.”
The mother deposes in her first affidavit to all three children having severe asthma which is controlled by medication.
Ms M in her report dated 27 November 2011 to the mother’s Solicitors says this:
“The three children have had constantly reoccurring respiratory infections over the last six to eight months indicating lowered immune function, a further sign of stress.”
In her first affidavit, the mother deposes in paragraph 57 to [X] and [Y] improving their academic performance markedly with the benefit of undergoing psychological counselling and assistance from Ms M.
In her first affidavit, the mother is supportive of the children having a relationship with their father, in spite of the violent traumatic experiences which each child has endured but only if the father is able to behave responsibly after receiving some assistance in the form of anger management, psychological counselling and attendance at a positive parenting program.
In her second affidavit filed 18 October 2012 the mother deposes to a conversation she had with [X] and [Y] in their car whilst returning from a picnic lunch with her cousin Ms K, who, in the absence of their mother was told something by both children when she was in a shop.
When continuing their journey home, [Y] was asked by Ms K to tell her mother what [Y] had just told Ms K but [Y] remained silent with [X] speaking out and saying:
“You know [Y], about Daddy sticking his finger in your bum.”
When asked by the mother whether this was correct, [Y] said:
“Yeah Mum.”
I accept the mother’s evidence that nothing further was said by her to [Y] and that she followed Ms M’s advice when she telephoned her later that day not to talk to any of the children about anything that had been disclosed.
The following day, 12 April 2012 the mother took the children to Ms M and sat in the room whilst Ms M spoke with [Y] and [X].
In her affidavit filed 19 October 2012 Ms M attaches her file notes of the interview with [Y] on 12 April when Ms M records, after talking to both children about the time they had spent at the park writes:
“[Y] was then able to tell me that when she was in the shower her father had rubbed her back and had then put his finger in her bum.
I asked, “Did this (sic) Daddy do this [Y], more than once.” Both children said yes but they couldn’t remember how often. Now [X] was 6yo and [Y] was 4yo at the time so this lack of the exact number is understandable. I also asked if [X] “did this happen to you”. She responded “No not to me but I saw him do it to [Y].”
[Y] then said that he made a ‘funny noise’ and looked at [X] who agreed. I asked if they could describe the noise that their father had made. [Y] started to curl up into a ball but [X] said “No I couldn’t make that noise.”
On 13 April 2012 Ms M, as a mandatory reporter submitted a report to the Department of Community Services, a copy of which is set out in her notes of 12 April and annexed to her affidavit filed 19 October 2012.
The mother deposes to [Y] being interviewed by JIRT on 1 June 2012 and was told subsequently that [Y] was reluctant to openly express the events which she had told Ms M had happened to her, JIRT were not in a position to take the matter any further.
It is common ground on the material before me that no further action has been taken with the alleged assault upon [Y].
On one interpretation, [Y]’s description to Ms M of what occurred may be sexual abuse or inappropriate touching, but equally, it may not.
I am left with the distinct impression that the manner in which [Y] made the initial disclosure to Ms K in the car, and it is unfortunate that there is no independent evidence from Ms K as to what was said, that [Y] was alarmed when Ms K was rubbing her back and said to her “You’re not going to put your finger up my bum?” and which suggests a past unpleasant experience.
The comment to Ms M describing her father as then making a “funny noise” combined with [Y]’s account that she was in the shower when her father had rubbed her back and then put his finger in her bum and that this had happened more than once suggests, at the very least inappropriate behaviour on the behalf of the father and the performance of an act which [Y] did not like.
In the second Family Report by Mr P published 24 July 2012 following his interviews with both parents and the two older children on 28 June 2012 notes[12] that [Y] had disclosed sexual abuse to a cousin of the mother in April this year following the last Court appearance, and that such allegation was substantiated by her older sister [X] and subsequently confirmed by [Y]’s disclosure to Ms M.
[12] See paragraph 10 of the Family Report
Mr P makes the observation, which I accept, that the mother believes the accounts given by [Y] and [X] of what occurred and is of the view that there should be no contact between the father and the children.
The father deposes in paragraph 10 of his affidavit sworn 12 December and filed 17 December as follows:
“I strenuously deny the allegations the mother or the children are purported to have made to the mother or to Ms M about any sexual abuse on my behalf towards the children or the mother.”
In paragraph 11, the father deposes as follows:
“I am deeply concerned and distressed by the making of these allegations and say they are false in every respect.”
Later in the same affidavit[13] the father strenuously denies the allegations and says:
“… and I believe she (the mother) has caused the coaching of the children to now make allegations against me.”
[13] Paragraph 22
It is significant in my view that the father has not offered any other explanation for [Y]’s account of what has occurred. He could, for example, have given a detailed account of how he cared for the children whilst they were in his company and in particular how he ensured they had a shower or bath and to the extent to which he was involved, if at all, and whether he rubbed her back.
The failure to give such account, but more significantly the denial by the father of the repeated abhorrent acts which the mother describes the father inflicting upon her prior to separation and for a long period of time lead me to the inevitable conclusion coupled with the father’s failure to appear at the final hearing that there is much about the father’s conduct toward the mother and the children which is unexplained.
Consequently, I find on the whole of the evidence and on the balance of probabilities that there is an unacceptable risk to the children spending time with their father.
The unacceptable risk takes the form of the father’s chronic aggressive behaviour both before and after separation of which the mother gives evidence, and which is unchallenged at hearing, the acts of aggressive behaviour and assaults upon the two eldest children which I accept have occurred at the hands of the father, the exposure of the children to family violence and the potential risk of the father behaving inappropriately with any of the children based upon [Y]’s account.
The evidence of Ms M at the hearing
Ms M described [Y] as a troubled child whose behaviour can swing between two different states manifested into completely different types of behaviour. One state is hypo – arousal which means that [Y] is frozen and can’t do anything much like a mouse being caught by a cat, unable to do anything at all except hold their breath. This state of behaviour is consistent with ignoring being spoken to, ignoring everything that is going on around and being in a state of withdrawal. The other state is being hyper – aroused manifesting itself in [Y] being angry, disobedient, flighty and at the other extreme of the behavioural scale.
Ms M considered that [Y] very rarely stays within a normal or stable band of behaviour except when she is at school where there is discipline, certainty as to what is happening and order. In those circumstances Ms M considered that she can contain her behaviour into such middle ground but can swing very quickly from one to the other extreme.
Ms M considered such swings of behaviour are indicative of trauma.
Ms M described [Y] as becoming more trusting of her which had developed over a period of time and that she began sharing events with Ms M.
Ms M considered that it was likely that [Y] had not made any disclosure during the JIRT interview because of the time that had elapsed between the time [Y] had told Ms M what had occurred and the time she was interviewed by JIRT. Ms M considered that whilst [Y] had sufficient emotional capacity to tell her, her ability to recount the same story to a stranger would have caused her to go into a hypo-arousal state which prevents her from communicating. Ms M said that [Y] needs somebody in whom she can trust then she is likely to be able to communicate but if she is with somebody whom she cannot trust then she refuses to talk.
Ms M considered it important for her to have stability and security to be better able to maintain a middle ground of behaviour and had earlier expressed the view in a report of 24 November 2011 to the mother’s Solicitors that if [Y]’s hyper-active behaviour could not be curbed then [Y] was heading towards an oppositional defiance behaviour disorder which would cause her and her siblings and her mother even more issues. Ms M noted that Dr T has prescribed medication for [Y] to settle her down and which he monitors regularly.
In her oral evidence Ms M said that she had accepted the veracity of the disclosure made by [Y] as to her father’s behaviour toward her because there was no reason to disbelieve her and she had found her to be really honest.
When asked whether she had made any other observation supporting her belief as to the veracity, Ms M said that when she had asked [Y] what else had happened she curled up in a ball again and said “Daddy made a sound” but when asked what it was, curled up in a ball again. [X] told Ms M that she had never heard that sound before and did not know what it was and could not make the sound herself. Although
Ms M described [X] curling into a tighter ball it seems she may be mistaken and is referring to [Y]. Ms M went on to say that indicated to her that [Y] was reliving the experience and just going back into the hypo-aroused state.
Ms M said that it was impossible for either [X] or [Y] to make the sound as described and which Ms M questioned was one of the father having an orgasm. Ms M considered that the children would require counselling when they reached their teenage years and preferably before leaving primary school to avoid any risk to major relationship problems later on. Ms M considered that should the children hear that sound again it would be sensible for them to know what it is.
When asked by Ms Burns, Counsel for the Independent Children's Lawyer what factual basis she had for forming the belief that it was an orgasmic sound Ms M described the children as looking totally puzzled and describing the sound as really weird, not otherwise able to describe it and something they had never heard before.
When asked whether it would be appropriate for [Y] to be re-interviewed by JIRT, or whether it was better left, Ms M preferred the latter, at least until [Y] was ready to talk about it. Ms M thought it would be more traumatic to revisit because she has already been traumatised once and to revisit now would cause more trauma.
Ms M has continued to talk with [Y] and describes her as continuing to be unstable because she moves from extremes of being frozen and not able to communicate, to being quite defiant, aggressive and hyper-active but stays within the normal range of behaviour at school because school gives her security.
Ms M said that the children are now much more at ease and more settled consequent upon not seeing their father for some time.
Ms M described a time when she saw [Y] just prior to the time with her father coming to an end and when [Y] described being hit by her father on the back of the head, asking him to stop but with him hitting her again. When asked to describe her feelings to Ms M, [Y] said that she was so angry at all the adults who did nothing to help her. She thought they were going to give her support and she was very, very angry that they had not done so.
In her report of 24 November 2012 to the mother’s Solicitors, Ms M expressed the view that [Y] appears to have been extremely traumatised by her father’s behaviour in general but there were two incidents that appear to have had the most impact on her. The first was when the three girls and their cousin were in the girls’ bedroom cowed into a corner when the father broke down the bedroom door. The second was when the father hit [Y] on the back of her head on [X]’s birthday but ignored her plea asking him to stop adding that he had kept on hitting her.
When asked by Ms Burns what reaction or what harm to [Y] may occur if she was to have time with her father, either supervised or unsupervised Ms M said:
“I don’t think it matters. I don’t think she trusted the supervisor when she was hit, from her drawing that she did quite a while later. She was very, very angry that she was not cared for in the manner that she had expected. So I think it would be extremely risky behaviour to have [Y] with her father, or any of the children because [X] says, “I don’t want to be near daddy because he does unkind things”.”
When asked what psychological harm could occur to the children if they were to spend time with their father Ms M said:
“[Y] would become more unstable. [Y] would swing between this not being able to do a thing state and then being absolutely out of control because she doesn’t know how to manage her behaviour.”
Ms M said that [X] appeared to be a brighter and more able child but mature beyond her years, whereas [Y] cannot verbalise her feelings of concern. Ms M said that [X] can and expressed a view that she does not want to be near her father because he hurts her.
Ms M had not seen [Z] a great deal and not for a number of months at the time of the hearing.
Ms M did not hesitate to express the view that in her opinion the children would suffer psychological harm if they were exposed to their father whether it be face to face or by telephone, and in [Y]’s case would be a trigger for oscillating behaviour and further psychological harm.
As to communication in a different form such as letters, birthday presents and Christmas presents Ms M considered that may not be a trigger and it would be a means by which the children would know the father still cared for them and thought about them which she considered the children would like to know.
I give considerable weight to Ms M’s evidence given both her wide experience in trauma and her extensive contact with and counselling of both the mother and the three children.
Whilst it is true that Ms M has not spoken to the father it is significant in my view that the mother’s evidence and recounting of matters to
Ms M is unchallenged.
The family reports
In his first report Mr P noted[14] there appeared to be no doubt that the father had historical issues with alcohol abuse and associated aggression and violence dating back some 13 years and concluding also that the children have probably been exposed to some level of violence perpetrated by the father upon property and at least one incident perpetrated on the mother.
[14] Paragraph 11 of the Family Report
Whilst Mr P thought it reasonable to suggest that the father had made a determined effort during the previous six months to reduce his alcohol intake it would appear that the children, whilst describing the father as being “calmer now” still had some anxiety about spending overnight time with him.
Mr P noted with some concern[15] that the mother had disclosed to the children a number of matters asserting that the father and his partner had behaved poorly but without any evidence to support such allegation. The consequence for the children was likely only to escalate their anxiety and at the same time alienate their relationship with the father.
[15] Paragraph 12 of the Family Report
No useful purpose is served in my traversing Mr P’s first report as to his interviews with each parent. It seems that each parent expressed their respective perceptions and views about the relationship although it is significant in my view that the mother did not disclose to Mr P any of the matters she subsequently disclosed to Ms M as to the father’s abhorrent sexual behaviour toward her during the relationship.
During the observation session Mr P said the father demonstrated a nurturing and warm approach with all three children, engaging the children in play with all three children appearing relaxed and happy in his presence with the father demonstrating good parenting skills and the children being responsive to their father[16]. Mr P made a similar observation in relation to the mother.
[16] Paragraph 65 of the Family Report
In his evaluation, Mr P noted some concern in relation to each of the parents approach to some of their parenting responsibilities, and whilst each had denigrated the other to the children[17], the primary issue remained the history of the father’s alcohol fuelled violence with the probable implications for his parenting of the children whilst they are in his primary care. Mr P considered his past behaviours towards both the mother and the children have been highly damaging for the children with such behaviour inevitably repeated if he is to have a long-term relationship with them.
[17] Paragraph 67 of the Family Report
Mr P recommended[18] that the children live with the mother, that they spend unsupervised time with the father each alternate Saturday as well as one mid-week afternoon each alternate week with the paternal Aunt involved in facilitating changeovers. Mr P recommended that father complete an “Anger Management” programme conducted by Interrelate before any overnight time with the children could commence and also complete a “Triple P parenting” programme with the father’s time then to increase to alternate weekends Saturday morning to Sunday afternoon. So long as his drug and alcohol counselling had also continued such time could then be increased after a further six months to alternate weekends Friday afternoon to Monday morning and with the father not to consume any alcohol whilst the children are in his care, either for a day or on an overnight basis.
[18] Paragraph 71 – 75 of the Family Report
In his second report following interviews on 20 June 2012 Mr P refers to the allegation by [Y], the mother’s perception of the children’s progress and stability and belief that consequent upon not spending time with the father that it had been beneficial for their overall emotional wellbeing in general psychosocial development.
Mr P noted that the father told him that he had completed a six week anger management program early in 2012 and which he found to be of benefit, that the father had had at least eight occasions with a Drug and Alcohol Counsellor with the last session towards the end of 2011 but with the father still consuming alcohol and becoming intoxicated once every four to six weeks. The father told Mr P that he had not commenced the “Triple P Parenting” programme. In his affidavit sworn 17 December the father again stated that he had not commenced such program.
In his interviews with the children, [X] told Mr P that she was happy seeing Ms M[19] and had had no night mares since not seeing her father but that she missed him “sometimes, but not much” and felt okay about seeing him on the day of the Family Report interviews.
[19] Paragraph 34 of the Family Report
[Y] told Mr P that it was good talking with Ms M with Mr P reporting that [Y], like [X] being positive about having the ongoing relationship with Ms M. [Y] told Mr P that she had not seen her father but made no further mention of him saying that “I am happy with Mummy and my pets”. [Z] was too young to be interview for the Report.
In the observation session, Mr P reported that the father hugged all three children with both [Y] and [X] sharing affection with him and with all three children appearing relaxed in his presence.
Mr P spoke with Ms M.
In his evaluation[20] Mr P concluded that although [Y]’s disclosure to JIRT was unclear and unsatisfactory as far as any criminal prosecution may be concerned, her disclosure to the cousin and subsequently to
Ms M raised extreme concerns about the safety of [Y] and her siblings whilst being in the father’s care.
[20] Paragraph 45-49 of the Family Report
Mr P drew a qualified conclusion based on the information he had gathered, that it would not be in the best interests of the children to spend any time with their father and made cautious recommendations that the children live with the mother and not spend any time with the father pending the outcome of the hearing and the evidence of Ms M and with the children to continue with their counselling for so long as deemed necessary by their respective clinicians.
In response to questions from Ms Burns, Mr P considered letter communication by the father with the children would be acceptable so long as it did not impose any demands upon the children psychologically or make them anxious as to whether they would be spending time with him.
Mr P was asked whether, if the Court accepted Ms M’s evidence he was of the opinion that the children should have no face to face contact with the father at the present time, and Mr P expressed very clearly that in his experience children who have made disclosures of sexual abuse who are reintroduced to the perpetrator gives rise to extreme regression for the children’s psychological wellbeing.
Mr P was appraised of the father not appearing at the hearing and the telephone conversation with him the day before and asked whether it was possible that the father may not understand the necessity for the children not to have any emotive pressure put on them by him. Mr P gave a considered response when he said that if the father remains in denial of his abuse of the child then it is likely that he would feel that his parental rights have been abrogated and that could mean that he is likely to make statements that are more self serving than what is recognised in the best interests of the child.
Mr P made it clear, and it is common ground, that at the time of the second Report the father was not aware of the allegation made by [Y].
Application of Section 60CC and the Legal Principles
As to Section 60CC I make the following findings:
(2) The primary considerations are:
a)the benefit to the child of having a meaningful relationship with both of the child's parents; and
The evidence establishes that all three children clearly have a close and loving relationship with their mother which is of great benefit to each of them and is a meaningful relationship.
It is significant that the mother has now been able to recognise the consequences of the dysfunctional relationship she had with the father over a long period and recognises now the importance of being able to protect the children from the emotionally and physically damaging relationship she had with the father.
It is also significant that the mother has recognised the need for the children to receive counselling from a suitably qualified Psychologist in the form of Ms M and is continuing and which the mother is able to support with the financial assistance provided by Victims Services, a New South Wales Government Agency.
I am satisfied on the evidence of the mother that she is able to provide stability for the children and especially [Y] while she recovers from the trauma Ms M described. The mother has also been able to ensure [Z] has been able to receive appropriate corrective treatment for her eye sight and gives evidence of the improved progress for both [Y] and [X] at school.
It is these factors together which give rise to the benefit to each of the children of the meaningful relationship they have with their mother.
For all intents and purposes, the mother is the only effective parent able to care for the children.
The evidence does not enable the Court to make any determination as to whether there is a benefit to the children of having a meaningful relationship with their father given the father’s apparent lack of interest or commitment to maintaining a relationship and given his absence at the hearing and the failure to pursue his case, whether or not he had legal representation, and which he was otherwise entitled to do.
The evidence of Ms M and Mr P suggests that the children do not wish to lose a relationship with their father but would like to think that he still has an interest in a relationship with them.
It seems to me that there is a possible benefit to the children if the father communicates with them on special occasions in the manner suggested by the Independent Children's Lawyer subject to appropriate vetting by the mother.
b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
There is clearly a need to protect each of the children from risks of this nature and especially the father’s past aberrant behaviour manifesting itself in family violence and damage to property. It is clear that [X] has a memory, that she told Mr P of the father, after separation, throwing a beer bottle at her mother, and ripping a door off its hinges. [Y] has a clear memory of being hit around the head by her father and there is the evidence concerning [Y]’s complaint to Ms M of behaviour by her father which I have found on the evidence amounts, at the very least, to an unacceptable risk.
The possibility of the children being exposed to risks of this nature by the father can be minimised if the father does not spend any time with them or communicate by electronic means and there is compelling evidence before me which warrants such a course.
Further, the Court has not been able to assess the father’s current awareness and insight as to the need to protect the children from risks of physical or psychological harm from being exposed to his behaviour for which there is ample evidence.
Whilst it seems that the father has undertaken forms of therapy recommended by Mr P there is no independent evidence or any evidence from the father as to the success of such programs and there has been no opportunity to test the father in cross examination. The father on his own admission continues to consume alcohol and becomes intoxicated at regular intervals.
Consequently, it is not possible for the Court to make any finding as to the father’s ability and capacity to protect the children from risks of this nature.
The available evidence leads me to the conclusion, on the balance of probabilities, that the father continues to represent a risk against which the children require protection.
In the past, the mother has also represented a risk of causing psychological harm to the children in the form Mr P described the effect of which has been to cause the children anxiety about their father and his partner.
Whilst the relationship between the parents is non existent and there is a strong element of mistrust between them, I am satisfied on the evidence before me and the manner in which the mother gave her evidence that she is now very aware of the need to protect the children from risks of this nature. I am equally satisfied she has the capacity to provide such protection. It is not established she has alienated any of the children from the father.
The evidence establishes that the children in the past have had a relationship with members of the paternal extended family including the paternal grandparents. The Independent Children’s Lawyer suggests, and the mother does not oppose a notation to the orders that the paternal family may forward to the children or any of them postal communication of the type which the father may send but subject to the same conditions as to vetting by the mother or the children’s therapist. I propose to make such a notation.
(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;
The children are not of an age or sufficiently mature to hold a view to which the Court could attach any weight.
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 doubt on the evidence before me that the children have a close and loving relationship with their mother and members of her extended family who are able to assist with the care of the children from time to time.
The evidence does not enable me to make any finding as to the nature of the children’s relationship with their father or his partner and they have not spent any time with their half sibling [C]. The children certainly have an awareness of their father and I find on the evidence that the only viable manner in which their relationship with their father can be maintained is for him to communicate with them by card or gift.
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;
The mother has demonstrated a past willingness and ability to ensure the children maintained a relationship with their father until such time that she adopted the recommendation made by Dr T and supported by Ms M that it was not in the children’s best interests and likely to be counter productive to their mental and physical health if they continued to see their father.
I am satisfied that the mother does not wish to exclude the father from the children’s lives and will permit cards and gifts provided she has the opportunity to vet the content and exclude any inappropriate statements by the father.
I am satisfied if the children continue their present recovery with the assistance of Ms M and express an interest to renew their relationship with their father when they are older the mother will encourage and foster the relationship.
There is no evidence adduced by the father as to his willingness and ability to maintain a relationship with any of the children.
If the Court makes an order as proposed by the Independent Children’s Lawyer, and which is supported by the mother, it is to be hoped that the father will send cards and gifts to the children. If the father chooses to be a responsible parent, and ultimately it is a matter of choice for him, this is the only way in which he will be able to maintain a relationship with the children such that they have knowledge of him and perhaps later on set about establishing a relationship with him.
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 is none. There will be no change for any of the children from their present circumstances. They will remain living with their mother and will not be spending any time with their father or having any electronic communication with him if I make orders as proposed by the Independent Children’s Lawyer.
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 is the potential for a practical difficulty given the father lives in [G] and the mother and the children live in [E]. The father has taken no active participation in these proceedings and it is a matter which does not require any further consideration by the Court. If he is to send cards and gifts there is a minimal cost to him.
f) the capacity of:
(i) each of the child's parents;
(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;
I am satisfied on the evidence that the mother has the capacity not only to care for and provide for and meet the emotional and intellectual needs of the three children but also to provide for their day to day care and physical needs.
The mother has shown that she is aware of the particular need in this case for the children’s emotional needs to be met and has ensured appropriate assistance through her General Practitioner and Ms M. The mother has also ensured appropriate medical treatment for [Z]’s eyesight.
The evidence is to the contrary so far as concerns the father. On the evidence before me I find the father has no present capacity to meet any of the children’s emotional and intellectual needs. I am unable to make any finding as to his ability to meet the children’s day to day physical 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;
I note the observations by Mr P in the two Family Reports and Ms M in her file notes annexed to her affidavits. There were no other characteristics of the children requiring observation or findings.
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;
On the evidence before me, this has no application.
i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
I find on the evidence before me that the mother has displayed an wholly appropriate attitude to her role as a parent and its responsibilities.
Whilst the mother in the past has been critical of the father to the children and had engaged in retaliatory behaviour with the father I am satisfied from her evidence that she now recognises that such behaviour is not in the best interests of the children and that she is aware now of the need to desist from such behaviour. I am left with the impression that she will.
The father has abrogated his responsibilities as a parent on the evidence before me and effectively forgone any interest he could have had in the growth and development of his children. The failure of the father to take part in the proceedings suggests he has a very poor attitude to his responsibilities as a parent.
It is also of considerable concern that the father does not pay any Child Support but is employed from time to time. Arrears at the time of the hearing were $20 105.21[21]. The mother deposes to the difficulties she has experienced supporting the children from her modest income and dependence upon charitable assistance for five months in 2010 and four or five months in August 2011. The evidence establishes that the father has displayed a very poor attitude to this aspect of the responsibility to parent.
[21] See Exhibit M2
j)any family violence involving the child or a member of the child's family;
I have referred earlier in these reasons for judgment to the history of family violence and no further observation is necessary.
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;
On the evidence before me there is no current family violence order in force.
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;
It is preferable to avoid the need for further proceedings and in framing the orders that I propose to make I will endeavour to do so.
If the Court is to make the orders proposed by the Independent Children’s Lawyer and supported by the mother it is always open to the father to bring an application at some later stage for parenting orders which the Court in all probability would be obliged to consider if he can establish a significant change in his circumstances within the meaning of Rice & Asplund[22].
[22] Rice & Asplund [1978] FamCA; [1979] FLC 90-725
m)any other fact or circumstance that the court thinks is relevant.
There is no other fact or circumstance which it is necessary for me to consider.
(4)Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child's parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child's parents:
(a) has taken, or failed to take, the opportunity:
(i)to participate in making decisions about major long‑term issues in relation to the child; and
(ii)to spend time with the child; and
(iii)to communicate with the child; and
(b) has facilitated, or failed to facilitate, the other parent:
(i)participating in making decisions about major long term issues in relation to the child; and
(ii)spending time with the child; and
(iii)communicating with the child; and
(c) has fulfilled, or failed to fulfil, the parent's obligation to maintain the child.
I have considered these matters at some length earlier in these reasons and no further comment is necessary.
Section 61DA
When making a parenting order the Court is required to 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, subject to the presumption not applying or being rebutted in the circumstances provided in the section.
In this case the presumption does not apply, and for two reasons.
First, the father has exposed all three children to physical, emotional and psychological abuse for the detailed reasons I have given earlier in this judgment.
Second, the effective withdrawal by the father from the proceedings makes it essential for the mother to have sole parental responsibility for both the long term and the day to day decisions concerning all three children. It would be quite inappropriate to impose upon the mother a responsibility, if there were an order for equal shared parental responsibility, to consult the father in relation to a decision to be made about any long term issue and to make any genuine effort to come to a joint decision about such issue[23].
[23] See Section 65DAC
Further, it would not be in the children’s best interests for the mother to be required to communicate and consult with the father about such decisions given the very poor relationship between the parents and with no communication between them and the inevitable anxiety which the children would experience if the mother was obliged to follow such a pathway. The evidence of Ms M establishes that it is imperative for the children to be protected from any unnecessary anxiety whilst the two eldest children continue with their counselling therapy.
Section 65DAA
Given my findings above it is unnecessary to consider this section.
Final conclusion
For these reasons I am satisfied that it is appropriate to make the orders suggested by the Independent Children’s Lawyer with the amendment sought by the mother as put by her Counsel that the occasions of communication with each child be limited to twice a year, that is each child’s birthday and at Christmas. It seems to me that such opportunity should also be extended to Easter which therefore facilitates three occasions of contact spread more evenly over the calendar year albeit there is a gap between mid June and Christmas.
In coming to the conclusion that it is appropriate and in the children’s best interests to make an order that the children spend no time with their father I am particularly conscious of the effect of such an order and the potentially serious consequences for the children’s relationship with their father.
When I come to weigh all the evidence carefully I am satisfied that if the children or any of them were to spend face to face time with their father or have communication by telephone it would expose each child to an unacceptable risk of psychological harm in respect of which
Ms M gave evidence and which I accept. I find on the whole of the evidence before me that it is not appropriate to expose the children to the risk of regression or further trauma of which Ms M gave evidence. There is a considerable body of Case Law that there is no reason to limit the use of “unacceptable risk” to cases involving allegations of sexual abuse or inappropriate behaviour.
It seems to me also that I should make an order that each parent advise the other of any change of residential address so as to ensure the father is able to send cards and gifts to the children and the children have a means of corresponding with the father if they so wish.
I will order that a sealed copy of these orders be served by pre-paid post by the Solicitor for the Independent Children’s Lawyer upon the father at his last known residential address in [G] and within 14 days of the date of making these orders.
For these reasons, I make the following orders.
I certify that the preceding two hundred and thirteen (213) paragraphs are a true copy of the reasons for judgment of Judge Coakes
Associate:
Date: 7 May 2013
Key Legal Topics
Areas of Law
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Family Law
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Evidence
Legal Concepts
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Natural Justice
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Procedural Fairness
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Remedies
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Causation
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Duty of Care
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Negligence
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