SALTER & HOUSTON
[2011] FamCA 435
•10 June 2011
FAMILY COURT OF AUSTRALIA
| SALTER & HOUSTON | [2011] FamCA 435 |
| FAMILY LAW - CHILDREN – Risk of sexual abuse and physical harm – Where the mother’s husband’s history of child sexual abuse poses an unacceptable risk to the subject children – The mother has not shown a capacity to act protectively and in her care the children are exposed to an unacceptable risk of sexual abuse from her husband - Where the father’s brother presents an unacceptable risk of sexual abuse to the children - Whether the father’s step-father poses an unacceptable risk of sexual abuse to the children – Whether the father’s neighbour presents an unacceptable risk of sexual abuse to the children – Where finding of unacceptable risk not made out - Where the father is protective of the children - Where the mother made allegations about family violence that were not raised with the father in cross-examination – Finding that there is no risk of abuse by the father of the children. FAMILY LAW - CHILDREN – With whom a child should live – Best interests – Two of the three children, aged 13 and 11 reside with the father and one, aged 15, resides with the mother – Where the oldest child’s preference is to reside with the mother – Where the oldest child has threatened suicide and her mental health is vulnerable - Not in this child’s best interest for the parents to have equal shared responsibility – The statutory scheme of parental responsibility to operate – No orders made in relation to oldest child in the mother’s favour – No impediment to welfare or other agencies intervening to protect the oldest child - The younger two children to stay living with the father and the current orders allocating sole parental responsibility to the father to remain –Mother’s application to discharge injunction which restrains her from permitting her husband to be present when she spends time with the younger children refused - The youngest child to spend time with the mother until she turns 13 and then in accordance with the child’s wishes. |
| Evidence Act 1995 (Cth), s 140 Family Law Act 1975 (Cth), ss 60B, 60CC, 61B, 61C, 61DA, 64A, 65AA, 65DAA |
| AMS v AIF (1999) 199 CLR 160 Collu & Rinaldo [2010] FamCAFC 53 Goode & Goode (2006) FLC 93-286 Hepburn & Noble (2010) FLC 93-438 McCall & Clark (2009) FLC 93-405 MRR v GR (2010) 240 CLR 461 Sealey & Archer [2008] FamCAFC 142 Starr & Duggan [2009] FamCAFC 115 Taylor & Barker (2007) FLC 93-345, U & U (2002) FLC 93-112 |
| APPLICANT: | Ms Salter |
| RESPONDENT: | Mr Houston |
| INDEPENDENT CHILDREN’S LAWYER: | Adams & Associates |
| FILE NUMBER: | NCC | 2917 | of | 2010 |
| DATE DELIVERED: | 10 June 2011 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Newcastle |
| JUDGMENT OF: | Ryan J |
| HEARING DATE: | 16, 17, 18, 19 May 2011 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Boyd |
| SOLICITOR FOR THE APPLICANT: | Legal Aid NSW, Gosford |
| COUNSEL FOR THE RESPONDENT: | Mr Weaver |
| SOLICITOR FOR THE RESPONDENT: | Adams & Partners |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Burns |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Adams & Associates |
Orders
All prior orders in relation to the child C HOUSTON born … October 1995 are discharged.
That Orders 1 and 2 of the orders dated 10 April 2006 and Orders 3 and 5 of the orders dated 8 February 2005 are discharged.
That the mother spend time with the child, J HOUSTON born … February 2000 as follows:
(a)until she turns 13 years on those occasions when changeover takes place at W, each alternate Saturday from 9.00 am until 5.00 pm;
(b)until she turns 13 years on those occasions when changeover takes place at Central Railway Station, from 10.00 am until 5.00 pm; and
(c)at such other times as the parties agree.
On those occasions when C accompanies the mother to spend time with J, changeover shall take place at Central Railway Station or such other place as the parties agree.
On those occasions when the mother is unaccompanied by C, changeover shall take place outside the … Pharmacy at South W.
No earlier than January 2012 the father is at liberty to change R HOUSTON born … October 1997 and J’s ordinary place of residence to Queensland.
Upon J’s relocation to Queensland, until she turns 13 years she shall spend time with the mother for no less than three (3) consecutive days from 9.00 am to 5.00 pm and no more than seven (7) days each Queensland school holiday in Queensland and thereafter for the same duration and frequency provided this is what J wants.
PROVIDED the mother’s husband (Mr S) has not accompanied the mother to Queensland and J wishes it, her time with the mother shall include overnight.
After the father has relocated, on those occasions he returns to Sydney, he shall facilitate daytime visits between J and the mother in accordance with J’s wishes.
That the children shall be at liberty to communicate with each other at any reasonable times by telephone, email, letter or any other means and the parties shall take all steps necessary to facilitate this communication.
That the children shall be at liberty to communicate with each parent at any reasonable times by telephone, email or letter and the parties shall take all steps necessary to facilitate this communication.
That the parties shall provide each child’s school with all authorities and sign or provide all documents necessary for the other party to obtain information directly from the school regarding the children’s education, including school reports, newsletters and invitations regarding school events that parents are invited to participate in.
That the parties shall advise each other in writing of their contact details including a current address and contact telephone number(s), and shall keep the other party advised in writing of any changes to these details within 48 hours of such change occurring.
That each party shall do all things necessary to ensure that each child attends any appointments scheduled with counsellors, doctors or other health professionals and that each child undertakes any treatment or other activities prescribed and directed to be undertaken by their counsellors, doctors or other health professionals.
That in the event of a child suffering a medical emergency requiring medical attention as soon as practicable:
(a)the other parent is to be notified;
(b)the other parent is to be provided with the full details of the practitioner or medical facility upon which the child attends; and
(c)the medical practitioner or medical facility is advised that the other parent has access to the child’s medical records and the information obtained with them upon request.
That the father is restrained from allowing the children to be alone in the presence of Mr N or G Houston.
The parties shall provide a copy of these reasons and the report of the Family Consultant dated 15 March 2011 to any psychiatrist or allied health professional attended by any of the children.
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.
All outstanding applications are otherwise dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Salter and Houston is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT NEWCASTLE |
FILE NUMBER: NCC 2917 of 2010
| Ms Salter |
Applicant
And
| Mr Houston |
Respondent
REASONS FOR JUDGMENT
These are parenting proceedings in relation to the parties’ three children, C, R and J who are respectively 15½, 13½ and 11. A lives with their mother, Ms Salter (“the mother”), at H on the Central Coast, New South Wales. R and J live with their father, Mr Houston (“the father”), at W in the Hawkesbury district.
When the parties separated in 2004 by agreement all three children lived with the mother. This was reversed within a few months from when all children lived with the father. In the years which followed, although the younger two children spent time with the mother, until October 2010, the oldest child refused see her.
In September 2010, R recovered inappropriate SMS messages sent by a 20 year old male neighbour to C which she showed to the father. He then spoke to C who denied sexual contact with the neighbour as described in his SMS messages. When the father told C it was his intention to speak to the young man’s mother and Police, she became distressed and threatened to leave home. This she did and went to the home of a school friend.
The following day the father went to C’s school where he spoke to the Principal and School Counsellor about what had occurred. He made plain his desire that C return home. Appropriately the school notified the Department of Human Services (“DHS”) about her situation. The school was particularly concerned about whether she was safe in her friend’s home and concerned that perhaps the father had ejected C from their home.
C was resolute she would not return to the father. It would appear, that with DHS and the school’s involvement, within the week, she moved in with her paternal grandfather and his wife. The father kept in contact with his father and step-mother about the situation; however, because C did not want to speak to him, he did not attempt to contact her directly. It was during this time C re-established contact with the mother. C initially contacted the mother by SMS message and during the following four weeks they spoke daily and met at and away from the paternal grandfather’s home.
On 16 October 2010[1] C gave the mother a letter addressed to the father in which she said she had been so depressed living with him she had contemplated suicide. In the letter the child asked for the father for some time out, during which she would live with the mother. Curiously, the mother did not pass the letter on to the father. By then she planned to commence proceedings to have the children live with her and it would seem she retained C’s letter as part of her evidence. No other action was taken by the mother in relation to the letter.
[1] Exhibit “R”
Five days later C sent a series of SMS messages to the mother to the effect that unless the mother immediately collected her she would kill herself. The mother showed C’s messages and letter to Police. Police, accompanied by the mother, went to the paternal grandfather’s home and removed the child. C was first taken to the local Police Station and from there to a local Hospital. The father attended the Police Station but was unable to speak to the child. At the local Hospital she and the mother were interviewed after which C was discharged into the mother’s care. In accordance with hospital advice, the mother admitted the child to X Hospital. While there she spoke with the father but did not see him again until briefly on Christmas Day 2010. C was discharged a few days later and has lived with the mother ever since. Other than on Christmas Day and at the Family Report interviews the father has not spoken with C. Basically he decided he would give her time and space and to not place her under pressure to speak to him until she wants to.
From that time, there has been little contact between the children, sporadic contact between the mother and younger two children and two meetings between C and the father. To a degree, the mother has been unable to see the young children because she has been busy with C who has refused to be left behind but also refused to visit W.
The mother proposed that orders in favour of the father that C lives with him and which restrict her from bringing the children into contact with her husband are discharged. She proposed that C live with her and to increase her time with the younger two children from each alternate Saturday to alternate weekends and half school holidays. Although numerous serious concerns were raised by her about the father’s parenting capacity, she nonetheless abandoned her application that all three children live with her or that his time with the children is supervised.
It is agreed by the father that orders in relation to C should be discharged. However, because C is in a highly emotional state and, for example, twice recently was hospitalised in relation to her poor mental health, he says she is not in a position to make sound decisions about her future. Thus, although C wants to live with the mother and to not see him, he asserts that her views are likely to change and it is in her interests to be free to return to live with him. Accordingly, he says there should be no continuing orders about C.
The father does not agree the younger two children’s time with the mother should be increased. He raised serious issues about the mother’s parenting capacity. Central to his concerns for C and the younger two children, is what he alleges, to be an unacceptable risk of sexual abuse posed by the mother’s husband (Mr S). In 1993, Mr S was convicted of 10 counts of aggravated sexual intercourse without consent. His victim was his 12 year old daughter. Mr S and his former wife separated and for two years he participated in a pre-trial diversion program for sex offenders. After he completed the program, Mr S returned to live with his former wife and daughter.
In 1996, Mr S was convicted of four acts of aggravated indecency and three acts of aggravated sexual assault. Again, his daughter was his victim. On this occasion Mr S was sentenced to a term of imprisonment, which concluded in 2002. Since then, Mr S has been on the Child Protection Register (“CPR”) in relation to which he is interviewed annually by Police. He is required to inform his CPR Case Manager if a child lives in his home. His CPR Case Manager is aware C resides with him.
It is common ground that when the mother and Mr S began to live together in May 2004 she knew about the nature and extent of his child sexual assault convictions. In addition that with the father’s agreement, the children who were then eight, six and five lived with her and thus Mr S. It is also agreed that before the mother permitted Mr S to move in, she told the father her partner had a criminal history. Although the mother informed him these comprised multiple child sexual offences, for reasons that will be discussed later, I accept the father’s evidence she withheld this information.
Within about six weeks of Mr S moving in with the mother all three children lived with the father.
It is the father’s contention the mother has demonstrated a serious disregard for her parental responsibilities, in particular, to keep the children safe. According to him, from when she invited Mr S into her home and the children’s lives, she prioritised her relationship with him ahead of her relationship with the children and their safety. For reasons which will be discussed later, this submission is accepted. Indeed, it is also clear, in the intervening years the mother has sought to maximise the younger two children’s affection for Mr S and to persuade them to love and trust him and to view him as another father.
The mother rejected the notion that Mr S poses an unacceptable risk of sexual abuse to the children. According to her, it is unnecessary and inappropriate for the Court to continue orders which prevent the children from coming into contact with him. However, if the Court determines that injunctions of this type are necessary, the mother and Mr S said they would comply. On this basis, while the younger children were in the mother’s care, Mr S would stay with family or friends. So that it is clear, it is not their intention that Mr S will stay away from C.
Because of the complex issues, an Independent Children’s Lawyer (“ICL”) was appointed to represent the children’s interests. The proceedings were accepted into the Magellan Program and a Magellan Report obtained from DHS. In relation to the oldest child, DHS expressed concern about the mother’s ability to act protectively in relation to Mr S and expressed concern about the oldest child living with him. Various notifications which had been made to DHS after the parties separated (primarily by the mother about the father) were also addressed. DHS did not express concern for the younger children in the father’s care. Although invited to intervene in the proceedings, unfortunately DHS declined.
A Family Report was ordered in January 2011 and undertaken by Family Consultant Ms K. The Family Consultant interviewed the parties, Mr S and the children in early March 2011 at which time the children were seen with the father and separately with the mother. The Family Consultant’s report is dated 15 March 2011. Attached to her affidavit sworn 16 March 2011 is her curriculum vitae from which it is clear she has the qualifications and experience to perform the investigative and reporting task required of her.
In her comprehensive Family Report the Family Consultant disclosed a sound understanding of the issues and facts. Cross-examination of her reinforced how thorough she had been in her investigation of the children’s circumstances. She accurately reported upon her interviews and observations of the children and the adults. I am satisfied that her evidence and opinions warrant significant weight.
In relation to the ultimate issues, in summary, the Family Consultant made the following recommendations:
·The parties have shared parental responsibility for the oldest child.
·The father have sole parental responsibility for the younger children.
·The oldest child should live with the parent chosen by her. As this is likely to be the mother, it is preferable that Mr S is absent from the household. The oldest child should spend time with the father in accordance with her wishes, in relation to which, the Family Consultant said “because of the risks to [C] in the mother’s care it is essential that the father maintain any positive link he can with [C] and reassure her that she is able to return to live with him at any time” (Family Report, par 146).
·The younger childrent live with the father.
·R should spend time with the mother in accordance with her wishes while J should see her during the day. This would be upon condition that Mr S is excluded.
Further recommendations were made in relation to the father’s proposal that he, R and J may move to T no sooner than January 2014. T is in Queensland on the Sunshine Coast and is where the father’s mother and step-father live. In this regard, the father and children have, for years, spent Christmas school holidays on the Sunshine Coast. Although the timing is not precise, well before these proceedings commenced the father and all three children planned to move to T. When this might occur had not been decided and it is possible it may not happen. While the father is hopeful the oldest child would join him and her sisters he understands that she may not.
On the T scenario, it was recommended by the Family Consultant that the siblings spend time together if the mother and C visited Queensland and that irrespective of C’s presence, J spend at least three consecutive days with the mother whenever she visited.
At the end of the hearing it was submitted by the ICL that it is in the children’s best interests for orders to be made along the lines recommended by the Family Consultant, and that in relation to J, upon her turning 13 years she should be free to choose whether she would see the mother.
Background facts
Unless stated differently throughout these reasons, the balance of probabilities will determine findings of fact (s 140 Evidence Act 1995 (Cth)).
Mr S was born in 1955. He is 56 years.
The father was born in 1965. He is 46 years.
The mother was born in 1976. She is 35 years.
As has been mentioned, in 1993 Mr S was convicted of 10 counts of aggravated sexual intercourse without consent upon his 12 year old daughter.
In early 1994, the parties’ relationship commenced. The mother was 18 and the father 29. The parties lived together at her mother’s home. The father has two adult sons by different mothers from relationships which ended before his relationship with the mother commenced. Bizarrely he disclosed one son in his evidence in chief but not the other.
The parties married in January 1995. By then the mother was estranged from her family. Although the mother blames the father for her estrangement from her family, her evidence was not so reliable that without hearing from members of her family, I can accept her explanation about why her relationships ruptured.
C was born in October 1995.
Neither party had paid employment while they cohabited and both were involved in the children’s care.
In 1996, Mr S was convicted of four acts of aggravated indecency and three acts of aggravated sexual assault upon his daughter. He was sentenced to six years imprisonment, which concluded in 2002.
R was born in October 1997.
Police attended the parties’ home in February 1999. They were advised the parties had argued about the father’s affair with the mother’s aunt and agreed to separate but reside in the same home. The mother told Police she was not afraid of the father and that there had been no physical violence. Informed by Police about the availability of Apprehended Violence Orders (“AVOs”), the mother indicated such action was unnecessary. The parties reconciled not long afterwards.
In February 2000 J was born.
Police attended the parties’ home in July 2002. The mother told Police that during an argument she pulled the father’s hair after which he threw her onto a lounge. Police report neither party was injured or distressed. Neither party expressed fear and the Police record that they too had no fears for either party. It is noteworthy that the mother was interviewed at a friend’s house in the absence of the father. The point being she was able to speak freely. Again Police advised her about AVOs in relation to which the mother said such action was unnecessary.
The parties separated on 22 January 2004 the catalyst for which would appear to have been the father’s belief that the mother was involved with Mr S. An argument ensued during which the father made it clear he would not vacate their Department of Housing home but would not interfere with her leaving with the children. The mother telephoned Mr S who contacted Police. Police attended the home and spoke to the mother. She was advised Police could not simply remove the father. The mother was questioned about family violence in relation to which she denied she held any fears “at all” for herself or the children. No further action was taken by Police.
Thus, the mother moved out with the children and stayed with a friend until, within a month or so, the Department of Housing gave her a home.
Almost immediately after the parties separated the mother commenced her relationship with Mr S who she had met in 2003. No issue was raised by the father about the mother’s desire that the children live with her. Indeed, it was his desire that the parties reconcile and there is little doubt that in the period immediately post separation he drank to excess, was unreliable in relation to contact with the children and refused to give the mother her and the children’s possessions or a share of the household contents. He was unpleasant to her on the telephone but did not threaten to harm her or the children. Although the mother encouraged contact between the children and the father, it was nonetheless sporadic.
The parties attended mediation on 6 April 2004 in relation to which the father “gave the mother ‘his access rights’”. By this, the parties understood it was agreed the children would live with the mother and have regular contact with the father.
After mediation, contact between the children and the father became regular and occurred, at least every Sunday. According to the mother, as soon as regular contact started the children began to act up, prompted, she believes, by attempts by the father to undermine their relationships with her. While there may be some truth in this, there are a number of other reasons why the children in this early period post separation needed time to adjust.
In May 2004, Mr S moved into the mother’s home where she lived with the three children. As I mentioned earlier the mother knew about his child sexual assault convictions.
Within about six weeks the oldest child was distressed and threatened to harm herself and the mother. The mother said her daughter’s physical aggression, for example she tried to stab her with scissors, was frightening. Twice the mother contacted Police. Once because the child threatened self-harm and on the other she threatened to harm the mother. Although, according to documents attached to the mother’s affidavit, C said she did not want to even see the father, by agreement she began to live with him. Thereafter C refused to spend time with the mother. Notwithstanding her views against doing so, it was the father’s habit to take C to changeover where she could see the mother but still the child refused to speak to her.
About five weeks later (mid July 2004) the mother told the father she planned to move with the two younger children and Mr S to the Central Coast of NSW. The reason the mother wanted to move was because Mr S’s job had been relocated. This prompted the father to obtain legal advice as a consequence of which he instructed his solicitor to enquire about the nature of Mr S’s convictions.
In the meantime, the father opposed the children being moved from W where they had always lived. Thus, pending determination of the issue by a court exercising jurisdiction under the Family Law Act 1975 (Cth) (“the Act”), the mother was required to choose between staying at W with the children and dealing with the father’s argument against them being able to move to the Central Coast. It was the mother’s decision to move to the Central Coast with her partner and temporarily relinquish the younger two children’s care to the father. Thus, from mid July 2004 all three children lived with the father. From when the parties began to live together the father had not sought paid work. Rather than pay child support for his sons, he chose to be unemployed and at some stage was placed on a Disability Pension. In relation to these children, from the outset this meant the father was involved in their care and their transition into his fulltime care was somewhat less traumatic than might otherwise have been anticipated.
So that it is clear, the father’s decision at separation that the children could live with the mother supports the inference he was satisfied she could competently care for the children. Considered in combination with other evidence, I am satisfied that prior to separation the mother had been primarily responsible for and reasonably competently cared for the children. For them, her decision to move away must have been a real wrench.
In any event, by agreement, the younger two children spent each alternate weekend and half school holidays with the mother at her home on the Central Coast. This ended when the father discovered the nature of Mr S’s convictions. Not long afterwards the mother sought to discontinue her application for parenting orders, the effect of which was that the children would continue to reside with the father. In the event, without her participation, final parenting orders were made in February 2005 which provided that the children live with the father, for him to have sole parental responsibility and the children see the mother each alternate Saturday. Relevantly, the mother was restrained from bringing the children into contact with Mr S.
At about this time the mother began a lengthy period of alcohol abuse. She saw the younger children a couple of times and then stopped. She did not tell the father she would not see the children and for a few weeks he took them (including the older child) to the changeover place. When he worked out the mother did not plan to see the children he stopped taking them. The mother did not see them again for the following 12 months.
In late 2004 the mother started to suffer “seizures” which were probably stress related as a consequence of which her doctors advised she should not be alone at night. Since then the mother has been in receipt of Disability Pension. Mr S stopped work in about February 2005 and on their application Centrelink paid him to be her carer. This remains the situation. At about the same time the mother consulted lawyers about a possible Victims Compensation[2] claim in relation to domestic violence by the father. This included an unsuccessful claim for lost wages by her and Mr S. As part of her otherwise successful claim the mother was granted funding for regular counselling and psychological assistance. She was assessed as having been severely depressed for a number of years, as well as suicidal on occasion, abused alcohol and being socially isolated with few interpersonal skills. Counselling was however beneficial and empowering and over time the mother’s capacity to function improved.
[2] Exhibit “N”
In early 2006 the mother decided to resume contact with the children. The father complied with her request but only contact with the younger two children was re-established. The older child, C, again refused to see or speak to the mother. Because of the length of time during which the children had not seen the mother, it was agreed she would initially see them on three occasions for four hours and then each alternate Saturday from 9.00 am to 5.00 pm. To give effect to this agreement further parenting orders were made by consent on 10 April 2006. Thus from April 2006 until mid 2010 the mother usually saw the younger two children each alternate Saturday. Regrettably, on a not insignificant number of occasions the mother cancelled. She has, for some time, struggled with alcohol abuse and depression and three times attempted suicide. Her failure to see the children usually coincided with periods of poor mental health or excessive alcohol consumption. The children said the mother was hung over on quite a number of occasions. Given the extent of her alcohol abuse I am satisfied she was.
On 31 January 2007, the mother wrote to the father and asked him to agree to increase her time with the children to each alternate weekend from Friday, 5.00 pm until Sunday, 5.00 pm plus half school holidays. She said she understood his concerns about Mr S in relation to which she proposed he would vacate the home and not come into contact with the children. Absent a written response within 14 days the mother said she would commence proceedings. The father did not receive this letter. Further proceedings were not commenced by the mother.
In November 2007, the mother and Mr S married.
The mother was admitted to hospital with a drug overdose in December 2007. During 2008-2009 she was admitted to hospital on a number of occasions in relation to alcohol abuse.
On 13 March 2008, the mother contacted the Central Coast Drug and Alcohol Counselling team. About six weeks later, she began regular treatment for her alcohol abuse. Between then and mid November 2009 the mother attended 29 counselling sessions. The focus of these counselling sessions was the mother’s “alcohol use, anxiety symptoms and the distress associated with her longstanding concerns regarding the care and wellbeing of her children”. It was a mutual decision for the mother to finish counselling in November 2009, with the view expressed by her counsellor (Dr A) that she had made substantial and sustained improvement and, I infer, that her risk of relapse was low.
In any event, when the mother saw her counsellor on 21 April 2009 she informed him that the younger children told her during a recent visit that C had been sexually abused. The alleged abuser was the children’s next door neighbour, P. He is the young man who sent the SMS messages to C referred to earlier. In accordance with his obligations as a mandatory notifier of child abuse, the mother’s counsellor reported the allegation to DHS who the mother also contacted.
In her oral evidence, the mother gave a different account about how she learned about this alleged sexual abuse. According to her, she was in an internet chatroom with one of C’s friends. This friend told the mother C had been sexually assaulted. There was no mention by the mother in her oral evidence that this information was relayed to her by her younger children. The X Hospital notes record that the mother told them she had impersonated a friend of C’s in order to be accepted into C’s social media chatroom. During a chat C told her she had been sexually assaulted by P.
The mother claimed, and the father denied, that she raised this matter with him contemporaneously. I am satisfied she did not. As soon as the father saw the SMS messages in late 2010 he acted quickly and sought to establish whether P had behaved inappropriately to C. He has acted protectively in relation to the children’s contact with Mr S and the father’s brother (who has numerous child sexual assault convictions, which are discussed in more detail later in these reasons). I am satisfied, that if the father was informed in April 2009 there was a credible basis upon which to be concerned about P’s behaviour towards C he would have been protective of the child and tried to establish the facts. For the same reasons, I do not believe the father knew the nature of Mr S’s convictions when he agreed that the children could live with him.
The mother made more complaints to DHS and Police in mid 2009. These are accurately summarised in the Magellan Report as being:
(a)harsh physical discipline of the children [by the father] which allegedly resulted in physical harm to them;
(b)the father’s conduct in respect of washing or drying the children with allegations that this was sexually inappropriate; and
(c)the father’s capacity to care for the children.
DHS indicated that many of the reports came within short timeframes and involved “information about the same incidents reported by different sources but where the original information came from the same source”. The mother was the “same source” and much of the information related to conduct by the father prior to the parties’ separation or the mother allowing the children to live with him.
DHS interviewed the parties and R. Home visits were made to the father’s home. The home visits were unannounced in relation to which it is recorded that the home was “clean and tidy, the father presented as organised with a routine that consisted with him having had prepared the evening meal in the early afternoon”. The children were observed with the father in relation to which DHS record there were no concerns about their interaction. Contact was made by DHS with the children’s school who informed them the school held no concerns for the children and that they regarded the father as appropriately supportive. R confirmed the information provided by the father that he had previously used a belt on the children but that he did not leave marks. Also that he had abandoned this inappropriate discipline in favour of withdrawal of privileges. The result of the mother’s notifications was that DHS was satisfied there were no risk issues for the children in the father’s care as at June 2009.
On 17 June 2009, the mother contacted Police to whom she made the same allegations as those referred to above. When she did this the younger two children were with her and at her request Police spoke to them. The Police records[3] show they asked the mother if she was worried that the children were being sexually abused by the father. This was in the context of concern expressed by her about “the wipe-down”. The children told the Police “that sometimes they don’t have a bath and Daddy would wipe them down … with a hand towel or similar”. The mother told Police that for about the last three months she had made a report to DHS just about every time she had the children.
[3] Exhibit “H”
The Police report that the children appeared healthy and happy and showed no fear when discussing the father. Police subsequently interviewed the father and C. It appears they arrived at his home unannounced. They report the house was tidy and that C appeared very happy and stable and showed no fear of the father. No mention is made in Police records that C or the father spoke to them about the mother’s allegation C had been sexually assaulted by P two months earlier. Nor indeed, did the mother raise this with Police on 17 June 2009. No mention was made of this issue by the younger children. The lack of reference to this issue in mid June 2009 by any family member persuades me that the mother had no credible basis for her allegation in April 2009 that P had sexually assaulted C or that she had told the father about this.
In 2010 C entered Year 9. Although she initially maintained her previous good school attendance and grades she lost focus and began to mix with a fairly tough peer group. She then started to truant. The school was sufficiently concerned that they wrote to the father and informed him that if she continued to behave this way, she may not attain her school certificate. In response the father tried to sever the friendships and unsuccessfully encouraged C to see her school counsellor. There is no doubt that C and the father’s relationship was under pressure.
On 19 July 2010, the mother contacted Dr A following which in mid August 2010 she resumed fortnightly alcohol counselling. This was because she had lapsed into significant alcohol misuse.
It was during the weekend of 15-16 September 2010 that R showed the father SMS messages sent by P to C. The text messages referred to C having given P “head jobs”, and in relation to sexual acts that “next time you’ll have to do more”. C was instructed to “come over when your Dad’s asleep”. C told the father “nothing happened, we just listened to music, I’m not saying nothing Dad because it would only get [P] in trouble”. The father told C it was his intention to speak to P’s mother and possibly Police. C was very upset by what was and may occur and ran away. It is possible she was embarrassed and felt wrongly accused.
The father spoke with P’s mother who denied there was anything more than an appropriate friendship between their children. The father, P’s mother and P have not spoken since. The father took C’s telephone to Police who downloaded and retained the SMS messages. However, absent a complaint from C, the father was informed they could not take the matter further.
Much was made by counsel for the ICL about the father’s evidence he told Police “that even if [C] had a crush on [P] and consented to the relationship” because of her age and their age differences he regarded any sexual relationship as illegal and wanted Police to act. The father was criticised for his use of the word “crush” which it was suggested revealed his failure to appreciate the wrongful nature of the young man’s actions. P and C were friends for some years and it is possible she had a teenage crush on him. Such a conclusion is consistent with the manner in which C spoke about him to a number of interviewers. As the father explained to Police the former does not make inappropriate behaviour excusable. Criticism of the father about this matter was unwarranted.
Any notion the father ejected C from their home is dispelled by documents produced by the local Hospital[4]. These contain the letter C wrote to the father on 16 October 2010 in which she explained why she wanted to live away for a period. She said:
I don’t mean to upset you but I have enough self hate and anger to commit suicide and most people know it. I’m asking that you let me go for a while and revoke the Court order so I can live with [the mother] and get my head cleared. I think the time apart will do us good. I’ll move schools away from my mates and get my grades back. I’ll be better if you let me go for a while. I’m sorry, love you, xoxox [C]
[4] Exhibits “M” & “R”
In her interview with hospital staff on 22 October 2010 C did not claim that the father threw her out or that she had been sexually assaulted. She reported that for the preceding year there was conflict between her and the father about his opinion her peer group were a bad influence and attempts by him to disrupt these friendships. She said she had been depressed for about 12 months and on one occasion scratched her wrists in relation to which the father had not taken her seriously. However, about six months later, he had unsuccessfully tried to persuade her to see the school counsellor. To the hospital, the father made it plain he wanted C to return home. However, in the face of C’s clear statements that unless she was allowed to live with the mother she would self-harm, the hospital released her into the mother’s care. The hospital notes report the mother told them Mr S had been “wrongfully” convicted.
The local Hospital referred C to the Central Coast Mental Health Service. A notification was also made to DHS who contacted the NSW Police. Police confirmed Mr S’s convictions and informed DHS he is on the CPR. Police advised DHS that Mr S informed them C now lived with him and there were no conditions which prohibited him from residing with her or, indeed, any other child.
C was admitted to X Hospital on 23 October 2010 under the Mental Health Act 2007 (NSW). After two days she was settled on mood stabilising medication (which she continues to take) and discharged into the mother’s care. Apart from observations of the child’s mood and level of functioning, the bulk of the interview notes relate to discussions between hospital staff and the parties. In C’s interviews with medical staff there is no note of her saying she had been sexually assaulted. As the interviews appear to focus on matters which troubled the child, had she been sexually assaulted this would probably have been mentioned. The mother, however, told hospital staff C was terrified of P and the children were terrified of the father. She said the father was aware P abused C but took no action because “he wanted to stay on good terms with [P] because of the cheap rent he pays on the premises”.
Curiously, during this admission, C told a nurse she planned to apply for an AVO against the father. The hospital records show discussion between C and the mother about the effect of the parenting orders. Namely, that the father was entitled to insist, as he had been, that she return to him. Also, discussion about C seeing the mother’s solicitor in relation to the orders being varied so that she could live with the mother. According to the mother C has continued to be concerned her father would take her. There is no evidence the mother has tried to dispel this notion or explained to C the logical inconsistency between this fear and complaint he has not stayed in touch. So that it is clear the father has not threatened or attempted to force C to return against her will. There was no basis upon which an AVO could properly have been made for C’s protection from the father. While C did not pursue an AVO against the father, I am troubled that it was while she was in the mother’s substantial care that she came up with such a notion.
DHS staff interviewed C and the mother on 28 October 2010. The interview is summarised in the Magellan Report. It is there recorded that C told DHS she did not want to live with the father and she believed he had been dishonest with her in relation to the mother and the parenting arrangements. She said she had been physically disciplined by the father using a belt to hit her. When this occurred is not revealed and it is likely it refers to inappropriate discipline by him which ceased years earlier.
In relation to P, C told DHS that he was a “really good friend” who had much in common with her. C said that he had propositioned her but she had refused his advances and that nothing had happened between them. In relation to the SMS messages, these were sent the following day. She recalled he called her a “slut” and queried “why didn’t you give me what I wanted”. C told DHS she was confused and had not wanted to lose a friend.
Relevantly, in relation to the DHS interview with the mother it is reported in the Magellan Report she:
… stated during the interview that she did not believe that the children should continually have to pay for a “mistake” that Mr [S] had made in the past. [The mother] also expressed her lack of confidence in the reliability of Mr [S’s] convictions as she did not feel her husband was capable of perpetrating sexual abuse based on her current relationship.
According to the mother the local Hospital and DHS inaccurately record her remarks. Given the gravity of the subject matter, it would be surprising for two unrelated interviewers to make the same mistake. During this hearing, the mother demonstrated her strong allegiance to Mr S. It is very important to her that she is accepted as someone who has always put her children’s interests ahead of her own and that any difficulties in her relationships with the children were caused by the father. No mention was made by her to her various therapists that her difficulties in obtaining “custody” may have been connected to her decision to live with a person with Mr S’s criminal antecedents. The notion Mr S was “wrongfully” convicted is consistent with her stance that he has never posed a threat to the children and her allegation the father was opportunistic in how he used this issue to prevent the children living with her. I am satisfied the mother told staff at the local Hospital and DHS Mr S was wrongfully convicted. I agree with DHS and the Family Consultant that this raises questions about her ability to ensure the children’s safety.
DHS referred the allegation in relation to P to the Joint Investigative Response Unit (“JIRT”) for further investigation.
The mother commenced these proceedings on 5 November 2010. Summarised she sought sole parental responsibility for all children, that they live with her and have supervised time with the father.
On the same day C started school at L High School. This is the school closest to where the mother resides. C had not been to school from when she left the father’s home. At L High School she was bullied and unsettled. Somehow her former schoolmates contacted her new schoolmates on the internet and a distressing Facebook page was set up called “How to kill [C]”. At the Family Report interviews C accused R of involvement which R denied. C was granted Principal’s leave and stayed at home. According to the mother she informally home schooled C until she returned to school in April 2011. Precisely what this home schooling comprised is unclear.
A JIRT caseworker informally interviewed C on 16 December 2010. The interview is summarised in the Magellan Report. DHS report:
[C] expressed ambivalence in relation to her relationship with [P]. She said that she wanted to keep his friendship but that she also wanted him to pay for what he did to her. What he did to her is unclear apart from the previously referred to abusive emails. In this interview she also disclosed that he was harassing her by phone but that she will not return his calls and that she has changed her phone number a number of times. [C] declined a formal JIRT interview at this time but advised that she would make a decision about that in the New Year. The JIRT investigation is incomplete.
Thus, it is apparent to JIRT, DHS and the father, C either specifically denied she was sexually assaulted by P or did not disclose behaviour by him which would constitute sexual assault. Allegations of this type were, however, repeatedly made by the mother. Again, it is an important part of her case that the Court accepts that while C lived with the father, although he “knew” from the mother that the child was being sexually abused, he failed to act. Although it is not possible to be certain, it may be that the mother perceives such a finding may neutralise the impact of the risk posed to the children from Mr S.
The father filed a response to the mother’s application on 24 December 2010. In essence, he proposed orders which were the equivalent of the operative orders. On the father’s application, any change to the children’s circumstances would have been that C return to live with him. By his amended response filed 8 April 2011 in relation to C, he proposed only that the parties have equal shared parental responsibility and all prior orders made in relation to her would be discharged.
C was hospitalised on 9 March 2011 in relation to threats of self-harm. Excluding her admission to hospital on 23 October 2010, this was the second time following placement with the mother when she was taken to hospital in relation to threats she may harm herself. The other occurred on 2 December 2010. On that occasion, after C was assessed in the Accident and Emergency Department she was released into the mother’s care.
In April 2011, C commenced at M High School where she is happy. She attends full time and has a lead role in a forthcoming school musical. The school is some distance from the mother’s home and thus the mother drives her to and from school. In the few weeks C has been there, there has been no repetition of the problems she faced at L High School.
The applicable law
Orders concerning parental responsibility, with whom a child will live and arrangements for spending time with his or her parents, as well as other people interested in the child’s welfare, are parenting orders (s 64A). They arise in proceedings conducted under Pt VII of the Act. Unless a court makes an order which changes the statutory presumption of joint parental responsibility, s 61C(1) provides that until a child turns eighteen, each of the child’s parents has parental responsibility for the child. The meaning of ‘parental responsibility’ is defined in s 61B as: “… all of the duties, powers, responsibilities and authority, which by law, parents have in relation to children”. Essentially the presumption relates to parental decision-making and does not determine where or with whom a child will live. By virtue of s 61DA(2) the presumption does not apply where there exist reasonable grounds to conclude that a parent, or a person who lives with a parent of the child, has engaged in family violence or child abuse. The presumption is rebutted where a court is satisfied it would conflict with the child’s best interests (s 61DA(4)). Thus, if the Court determines the presumption does not apply or is rebutted, it must decide the appropriate parental responsibility arrangements.
Section 60B sets out the objects of Pt VII and the principles, which underline those objects. In deciding whether to make a particular parenting order, including an order concerning parental responsibility, s 60CA and s 65AA ensure that the child’s best interests are the paramount consideration. Section 60B is important as it provides the context within which the relevant s 60CC factors are to be examined and ultimately weighed. The importance of s 60B factors varies from case to case but as a general approach, examined from the child’s perspective, points the way to an optimal outcome. Where there are no countervailing factors, the s 60B principles may be decisive. Section 60B is set out below.
1.The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
2.The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
3.For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a)to maintain a connection with that culture; and
(b) to have the support, opportunity and encouragement necessary:
(i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii) to develop a positive appreciation of that culture.
In deciding the arrangements that will promote the best interests of a particular child, the Court must consider the various matters set out in s 60CC. Section 60CC(1) contains two primary considerations. The first is the benefit to the child of having a meaningful relationship with both of the child’s parents (s 60CC(2)(a)). The second is the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence (s 60CC(2)(b)).
The Court must also consider the thirteen additional considerations set out in s 60CC(3). These must be considered to the extent that each is relevant to the particular case. Paragraph (m) permits the Court to take into account “any other fact or circumstance that the court thinks is relevant”. This ensures that the infinite variety of children’s circumstances can be addressed. The Court must also consider the extent to which each parent has fulfilled his or her parental responsibilities, and has facilitated the other parent in fulfilling his or her parental responsibilities (s 60CC(4)). In deciding the appropriate parenting order, the Court must, to the extent possible and consistent with the child’s best interests, ensure its orders are consistent with any family violence order and do not expose a person to an unacceptable risk of family violence (s 60CG). Ultimately, the weight attached to each factor is a matter for the Court’s discretion.
If the Court is satisfied parents are to have equal shared parental responsibility, it must consider the practicability (s 65DAA(5)) of the child spending equal or substantial and significant time with his or her parents (s 65DAA) and whether doing so would be in the best interests of the child (ss 65DAA(1)(a) and (2)(c)). The notion of equal time requires no explanation and is decided first. If equal time is not ordered, substantial and significant time must be considered. This concept is defined in ss 65DAA(3) and (4).
Where neither concept delivers an outcome that promotes the child’s best interests, the issue is at large and to be determined in accordance with the child’s best interests (Goode & Goode (2006) FLC 93-286).
Since the 2006 amendments to Part VII there have been a number of cases in which the Full Court of the Family Court has discussed the approach to relocation cases. In particular, Taylor & Barker (2007) FLC 93-345, Sealey & Archer [2008] FamCAFC 142, Starr & Duggan [2009] FamCAFC 115, McCall & Clark (2009) FLC 93-405 and Hepburn & Noble (2010) FLC 93-438.
In Taylor & Barker their Honours in the majority (Bryant CJ and Finn J) referred to Goode & Goode where the Full Court set out the pathway to be followed in parenting cases. The majority specifically adopted the now oft quoted par 65. In the context of the appellant’s assertion that the trial Judge had erred in dealing with the issue of relocation and the reasons for it as a separate and determinative issue instead of following the course referred to in Goode & Goode, the majority in Taylor & Barker held there was no substance to this ground of appeal. They held at par 60:
In our view, his Honour dealt with the relocation proposed in the context of his consideration of s 60CC and s 65DAA, at least in so far as it was possible to do so. It should be implicit in our conclusion in relation to this ground, that a relocation proposal should continue to be considered and evaluated, as far as possible, in the context of the making of the necessary findings in relation to the relevant s 60CC matters; however, as we will shortly explain, such a proposal now also needs to be considered in the context of s 65DAA.
In McCall & Clark the Full Court discussed and incorporated the matters of principle from Sealey & Archer. Relevantly their Honours said:
60.In Sealey & Archer [2008] FamCAFC 142 the Full Court (Bryant CJ, Finn and Thackray JJ) said at paragraph 63:
While it has been recognised that the Act does not provide any express direction or guidance as to the overall order in which the provisions of Part VII must be applied (Taylor & Barker (2007) FLC 93-345 at [62]), the legislation does require in s 61DA that when a court makes a parenting order, it must apply the presumption that it is in the best interests of the child for his or her parents to have equal shared parental responsibility for the child (unless there are circumstances in which the presumption does not apply, or in which it would be inappropriate to apply it, or it is rebutted), and it further requires in s 65DAA that if there is to be equal shared parental responsibility for the child, consideration must be given to the child spending equal time (or if not, substantial and significant time) with each parent.
And at pars 66 and 67:
Again as was recognised in Taylor & Barker (supra, see in particular paragraphs 58 and 77-83), in a case which involves a proposal that there be a significant change in the place where a child lives, it is appropriate for a court in its application of s 65DAA, and particularly s 65DAA(5), to canvass the advantages and disadvantages of a proposal “to re-locate” the child. We would also expect that the court would have addressed the matters arising under s 65DAA(5) in the context of its consideration of relevant s 60CC matters.
In making the latter observation, we should say that we do not see anything said in Taylor & Barker as suggesting that a trial judge would ignore the relocation proposal when making the necessary s 60CC findings…
No doubt frequently, as in the instant case, the non relocating parent’s proposal will be for an equal shared care arrangement, facilitating the consideration of matters under s 65DAA as one of the proposals, and not as an abstract exercise.
In our view, it is inevitable, given the provisions of the legislation, that the exercise to be undertaken will, on its face, involve dual consideration of some matters. For example, consideration of matters under s 60CC(3)(d) (the likely effect of any change in the child’s circumstances) and matters in s 65DAA(5)(a) and (b) and s 60CC(3)(e) (practical difficulty and expense of a child spending time with a parent) and s 65DAA(5)(a), (b) and (c) involve examination of similar criteria.
Thus relocation cases are to be approached as follows:
· they are parenting cases to be determined in accordance with Part VII;
· the child’s best interests is the paramount but not the only consideration;
· a relocation proposal should be considered and evaluated in the context of making necessary findings in relation to the relevant s 60CC matters and, where relevant, s 65DAA;
· in its application of s 65DAA, and particularly s 65DAA(5), it is appropriate to canvass the advantages and disadvantages of a proposal to re-locate the child.
It is still the case that neither party bears an onus to establish that a proposed change or the continuation of an existing arrangement will best promote the best interests of a child (AMS v AIF (1999) 199 CLR 160). Notwithstanding a parent’s right of freedom of movement, this must defer to the child’s best interests (U & U (2002) FLC 93-112). As with any parenting case subject to affording the parties procedural fairness, the Court is not restricted to their proposals.
More recently, the High Court published MRR v GR (2010) 240 CLR 461. This relocation case related to a parent’s proposal to leave Mt Isa with the parties’ child and live permanently in Sydney. The child’s other parent proposed to remain in Mt Isa and applied for equal time orders. At par 9 of their reasons the High Court said:
Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the Court determine that question. Sub-section (5) provides in that respect that the Court “must have regard” to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and “such other matters as the court considers relevant”, “[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents”.
At par 13 the High Court said:
Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)). It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order. The words with which par (c) commences ("if it is") refer back to the two preceding questions and make plain that the making of an order can only be considered if the findings mentioned are made. A determination as a question of fact that it is reasonably practicable that equal time be spent with each parent is a statutory condition which must be fulfilled before the Court has power to make a parenting order of that kind. It is a matter upon which power is conditioned much as it is where a jurisdictional fact must be proved to exist[12]. If such a finding cannot be made, sub-ss (2)(a) and (b) require that the prospect of the child spending substantial and significant time with each parent then be considered. That sub-section follows the same structure as sub-s (1) and requires the same questions concerning the child's best interests and reasonable practicability to be answered in the context of the child spending substantial and significant time with each parent.
And at par 15 the High Court explained:
Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible.
See also Collu & Rinaldo [2010] FamCAFC 53.
Application of the law to the facts
Section 60CC(2) comprises the primary considerations, subject to subsection (5) in determining a child’s best interests. The first of the primary considerations concerns the benefit to the child of having a meaningful relationship with both of the child’s parents while the second is concerned with risk issues, which relevantly include risk of sexual abuse and physical harm. In Collu & Rinaldo (supra) the Full Court pointed out that a number of s 60CC(2) and (3) considerations potentially overlap. For example, s 60CC(2)(a) and s 60CC(3)(b). The point being, that in some cases it may be necessary to make findings in relation to the nature of a child’s relationship with his or her parents before the Court could consider whether there was a potential for a meaningful relationship or there was no benefit for the child from a relationship with a parent. Their Honours explained where considerations overlapped it could be appropriate to consider the additional considerations first. Where the considerations clearly overlap, as they do here in relation to both risk and relationship issues, it is also reasonable to discuss overlapping considerations simultaneously. This is the approach I will adopt.
One of the pivotal issues in the proceedings is whether Mr S poses an unacceptable risk of sexual abuse to the children. If the Court’s assessment is that he does, it is necessary to consider whether the mother could be relied upon to act protectively and, if she cannot, the consequential effect upon her application for parenting orders. Because these are central issues they will be considered first.
As would have been anticipated, the Family Consultant explored Mr S’s history of sexual offending against children with him at some length. He was also cross-examined about this. The Family Consultant said he maintained a very calm and measured demeanour throughout. His evidence was given in a similar manner. To best appreciate the nature of his offences and explanation for how he came to so grievously abuse his daughter, his discussion with the Family Consultant, which is consistent with his evidence, is recounted below.
56.Mr [S] indicated that he first sexually assaulted his daughter when she was nine years old. He indicated that the offences for which he was convicted related to “a lot of touching and feeling”, including him getting his daughter to fondle his genitals. He said he had attempted to have sexual intercourse with his daughter when she was nine years of age but wasn’t able to complete this.
57.He said he thought that he could teach his daughter “to be like me. That she wants sex, that she likes sex and that it’s all right”. When asked to reflect on how he came to view his then nine year old daughter as an object of sexual gratification he stated “I couldn’t fully understand it. She was an easy target. I could do what I pleased with her and do whatever wanted to do”.
58. Mr [S] reports that his daughter disclosed his initial assaults on her to a teacher when they were “doing sex education at school”. Mr [S] said he initially denied the offences but eventually pleaded guilty because he had been advised he would get a lighter sentence and be eligible for the pre trial diversion program. Whilst he was involved in the program (two years) he lived separately from his then wife and children.
59.He said he learnt in the program about his abusive behaviour and the tactics he had used to isolate and manipulate his daughter. He said he would buy his daughter things and undermine the authority of her mother. He said he “used fear to control the kids which made it easier to abuse my daughter”. He said that at [the diversion program] he had learnt about the stages of abuse and his triggers. He said that his trigger was frustration leading to anger. He would become very frustrated and bottle things up.
60. Following completion of the program he moved back in with his wife and children. He said “I didn’t think I was cured but I didn’t think I’d do it again. I was too complacent”. He indicated that nothing had really changed in his relationship with his wife (they were arguing) and he said that this led to him continuing with his anger and subsequently re-engaging in his abusive behaviour.
61. Mr [S] indicated that “the thing with [the diversion program] is that I completed it but I didn’t deal with the anger. So anger was still there”. When it was suggested that the [diversion] program sought to develop empathy for a victim he said “I had empathy. I learnt about empathy, but when anger took hold of me I didn’t care. It was like I had a switch on and off.”
62.Mr [S] then stated; “to be honest I used [the diversion program] as a way of staying out of gaol. I went through the motions. I played the game”.
63. When asked how his anger and disputes with his then wife lead to him re-offending he stated “a lot of our arguments centred around sex”. He said that he and his then wife had previously been involved in swinging and that his then wife “stopped it all together. It started to dwindle off, that’s when I turned toward [my daughter]”.
64.He also said that following his release from the program the family had set ground rules such as to be fully clothed after showering. He said that his daughter and his then wife didn’t adhere to these and started just wearing towels again. He said that this impacted on his thought patterns and he “started to fantasise over again, which led to me doing what I did to [my daughter]”.
65.He said that the abuse had re-commenced when she was twelve or thirteen. He said “we fondled a lot” and that digital penetration had occurred. He indicated that he had “tried sexual intercourse but she was complaining it would hurt”. He reported sneaking into his daughter’s room early in the morning to cuddle and fondle her.
66.He said in retrospect he can see that she was “stiff as a board. With tears streaming down her face and shaking. At the time you don’t see things. You don’t consider that person there”.
67.Mr [S] said that he again used threats to maintain her silence. He said that ultimately his daughter had walked into a police station in […] and disclosed the further offences. He said that he immediately “owned up to it”.
68. Mr [S] was subsequently incarcerated for a six year period. He was involved with the sex offender program whilst in custody. He said that he then recognized that what he had done was wrong and it had to stop. He said he reflected that he had caused nothing but hurt. He reports finding the sex offender program helpful and that ultimately he would speak to new inmates eligible for the program. He denies “playing” the sex offender program. He said he knew he had “a choice to either play it or to knuckle down and change ways”.
69.When asked how he knew he would not re-offend he stated “I don’t think you ever know that. I know I’ve been there and am sure capable. But as long as f [sic] keep track of my thoughts, feelings and behaviours I know I won’t”, and “I can honestly say. I have no temptations or thoughts. I don’t fantasise. Now I see them as kids”.
70.Mr [S] was asked how the Court could feel comfortable with the children in his care. He said that he was unsure but went on to say that he is not near [C] when she showers. He also said that [C] has a “bad habit” of having her legs open when wearing a dress and that in the past he wouldn’t have commented and would have fantasized. He said he now comments and tells her to shut her legs.
In cross-examination, Mr S said that his fear of imprisonment is so great he will not reoffend. He believes he has a good understanding of behaviour by children which trigger his aberrant sexual desire. For example, when he saw his preteen daughter walk from the bathroom wearing only a towel he fantasised about her. In relation to C he tries not to be around when she showers and when she is seated, he insists she keeps her legs together. A lock has been placed on her bedroom door and the bathroom. Thus, according to him, although he does not fantasise about children, in order to ensure this continues, he avoids situations which in the past triggered sexual arousal.
Both Mr S and the mother correctly pointed out that when C was eight she lived with him for about six weeks. Also, that when the two younger children were six and five respectively they lived with him for about 11 weeks and, in 2004, spent considerable time in his company. They correctly point out that no complaint was made by any of the children about his behaviour.
However, the mother also gave evidence that during 2004 none of them were alone with Mr S. She denied, for example, that there was even a moment when she needed to attend to one child and in so doing was unaware about what the other two were doing or that they were out of sight. This defies credence. Thus, I accept Mr S had an opportunity to sexually abuse all three children which he did not take. Since then, although Mr S has not had an opportunity to abuse the two younger children, from late 2010, he has had ample opportunity to abuse C. There is no evidence Mr S has attempted to sexually assault C and I am satisfied he has not.
When these matters are considered in the context of there being no evidence of complaint about him subsequent to his release from prison in 2002 it would appear that the risk he may sexually abuse the children is lower than it would have been prior to his second suite of convictions.
However, the Family Consultant was troubled by the “general conversational tone” Mr S used when he discussed his child sexual assaults. Her point being, he lacked the accompanying effect indicative of empathy for his victim and remorse for his actions. I agree that, although Mr S at times spoke the language of empathy and remorse, his words seemed hollow. His reference to small minded members of the community (in relation to attitudes towards child sexual offenders) suggested he does not appreciate how others, including his victim, view his actions. Genuine remorse and empathy are powerful forces which affect behaviour. Where a person appreciates that an action may distress another person, is able to contemplate how that might feel and cares enough about not inflicting pain, logic suggests they are less likely to proceed with the offending behaviour. However, a person who lacks remorse or empathy does not feel so constrained and the risk of offending behaviour is thus higher. Mr S falls in the later category.
According to Mr S he adopted a long-term strategy to sideline his former wife from their daughter and establish the child’s dependence upon him before his sexual assaults began. Thus, when he felt his daughter was marginalised from her mother his sexual assaults commenced with him confident she had been groomed to accept his behaviour and lacked someone to whom she could complain. It will be evident that because his time with the younger two children was relatively short he did not have enough time with them to adopt the same strategy. It is also noteworthy that the subject children are the only children with whom he has resided since his release. There are no other children to whom he could even contemplate applying his modus operandi.
When C joined the mother’s home in late 2010 her counselling notes reveal she disliked Mr S and blamed him for the parties’ separation and taking the mother from her. She reported she knew about his history of child sexual assaults which, given her age, probably resulted in her being vigilant. Since then, however, C according to the mother has said Mr S was wrongfully convicted and she gets along well with him. C told the Family Consultant in March 2011 she liked him and she knows he will not reoffend. The situation now is that she is unguarded about how she presents herself in his presence and her attitude towards him has clearly softened. Her present views about him make her less likely to be vigilant. Nonetheless she has not lived with Mr S long enough for him to use his prior long term strategy to groom a victim.
Even after Mr S was convicted of his first tranche of child sexual assault offences, he was able to persuade his former wife and daughter that he could return to their family. Although Mr S’s former wife may have been more gullible than others in similar circumstances, I infer he was able to convince them both he would never again assault his daughter. In other words he was a skilled and convincing liar. The same skills could be used on the children. On balance, notwithstanding the absence of complaint about Mr S’s behaviour by the children or others since his release from prison, he may reoffend. I agree with the Family Consultant that he is a skilled repeat sex offender who presents a significant risk of sexual harm to the children, particularly C.
It is thus appropriate, to consider the children’s characteristics and assess whether they are able to keep themselves safe and/or disclose sexually inappropriate behaviour by their mother’s husband.
The Family Consultant described C as being troubled and at serious risk of self-harm and suicide. From C’s perspective after her parents’ separation the mother’s absence would have been perceived as rejection and abandonment which, according to the Family Consultant, would have had a significant adverse impact on her emotional development throughout her transition to adolescence. Presently, C is estranged from the father and reliant upon the mother who she is well aware prioritised her relationship with her current husband ahead of their relationship. These matters caused the Family Consultant to opine that C’s “emotional state and maladaptive coping strategies render her an incredibly vulnerable young person who is at a high risk of being re-victimised, particularly by sexual assault”. I agree.
It is also clear, that C has the intellectual capacity to anticipate that if she complained to the mother about Mr S, the mother would probably align with him. For C this would mean “there is a real risk that if she discloses she will become homeless”. Combined, these matters persuade me that C is highly unlikely to report inappropriate behaviour by Mr S to either party.
The younger children are reasonably easy going children of age appropriate maturity. At 13 and 11 respectively they do not have the maturity or life experience to protect themselves from the subtle strategy Mr S adopted when he groomed his daughter. Although they have not seen him (other then fleetingly on one occasion) since late 2004, there is attached to Mr S’s affidavit affectionate letters addressed to him from the two younger children. It is his evidence:
Over the years [the younger children] have sent home many notes, letters, Christmas cards, Father’s Day cards including a coffee cup with “Best Dad Ever” written on it for me. I recall from one of the notes they wrote it said words to the effect of even though we don’t see you you are still our second dad. Even though [the younger children] cannot have contact with me or see me at all they have still sent these things home anyway. (Mr S’s affidavit, par 23)
Annexure “D” to his affidavit is a note written by J in 2010. In it, she wishes him happy birthday and refers to him as “dad”. It is signed “I love you, love [J Houston]”. This and the other cards, notes and gifts were all created or acquired while the children were with the mother. In circumstances in which the two younger children had spent relatively little time with Mr S, know he is not their father, their young ages when they last had contact with him, and the six years since they saw or spoke with him, it is highly unlikely that they have any significant recollection of him or, absent the influence of others, that they would regard him as a significant person. For these children to communicate with him as disclosed, it is highly likely that the mother has used her time with them to inculcate them with her positive opinions about him, so much so that she has persuaded them to regard him as another father. In so doing the mother has made the children particularly vulnerable. Although they barely know him, she has convinced them to “love” and trust him. Her actions demonstrate a serious lack of judgment in relation to her obligation to keep the children safe. Her actions also demonstrate how vulnerable the children are to her manipulative behaviour.
I am strongly satisfied the younger two children are vulnerable to manipulative behaviour by Mr S. They are also old enough to realise that reporting to the mother misbehaviour by her husband would be futile and that she would align with him. While they are much more likely to tell the father, they may hold back for fear of even more parental conflict. These are findings to which I attach significant weight.
It was submitted on the mother’s behalf that the Court would accept she could be trusted to prioritise the children’s needs ahead of her own. This submission does not withstand scrutiny. One only needs to mention the mother’s decision to bring Mr S into the children’s lives in 2004, to relinquish the children to the father in 2004 so that she could leave with Mr S rather than remain with the children, the extent to which she has manipulated the younger children’s views in favour of Mr S, and her failure to ask him to vacate their rented home or herself live separately once C joined her, to appreciate the full extent of the mother’s preference for her relationship with her husband ahead of her protective obligations towards the children.
Relevantly, the mother permits Mr S to have contact with C in contravention of orders made under the Act about which Mr S is aware. From Dr A it was clear that the mother is highly reliant upon her husband. Although she did not explicitly say so, it is likely that she realises that without his support, her mental health and sobriety are seriously jeopardised. I am persuaded that the mother is unlikely to act protectively and highly unlikely to be appropriately vigilant in relation to the children’s contact with her husband. These are important findings.
The effect of these findings is that even with the mother’s supervision, in her care the children are exposed to an unacceptable risk of sexual abuse from her husband. While orders under the Act have been effective for a number of years, compliance by the mother has not been absolute and it would be inappropriate to regard future compliance by her or Mr S with similar injunctions as likely to achieve the absolute embargo upon his contact with these children which is required to keep them safe. These findings weigh heavily against the mother’s application to extend the younger two children’s time with her if this would include periods at her home and for orders in her favour in relation to C.
It is necessary to also consider whether the children are subject to an unacceptable risk of sexual abuse in the father’s care. This requires consideration of three people, namely the father’s step-father, Mr N, the father’s brother, G Houston and his neighbour, P. It is the mother’s evidence that it is known in the father’s family that his step-father sexually abused his daughter and one or more grandchildren. Because the children’s paternal grandmother resides with her husband and is likely to continue to do so, an issue arises about whether the children require protection from Mr N.
The paternal grandmother lives at T which is where the father proposes he and the children will live in about two years. For the past 5-6 years the father and children have spent about four weeks during the Christmas holidays at his mother’s home. As this will continue whether or not they relocate it is clear the children will come into contact with Mr N.
The father denied any family understanding about Mr N being known to have sexually abused children. According to him, when issues about Mr N’s criminal antecedents were raised by the mother in these proceedings, he spoke to his mother who told him Mr N’s prior convictions related to traffic offences. It would seem the mother raised this issue recently with J who, to the Family Consultant, was critical about the mother’s remarks about her step-grandfather. If this had been known within the family (and to the mother) as she alleges and she considered it to be an appropriate matter to raise with the children one would have expected her to mention it earlier.
In any event, documents produced by Queensland Police record that Mr N was convicted in 1972 of aggravated assault of a sexual nature. He was fined $40.00 and $2.50 court costs. The facts upon which he was convicted are not in evidence. The sentence tends to indicate the conduct on the lower end of seriousness and thus the victim probably was not a child. In 1987 he was convicted of driving and other offences none of which are relevant to the matter at hand. He has no subsequent convictions.
However, Queensland Police records also show he was arrested in 2002 when the mother of a child (who is his step-grandson) complained to Police that he had sodomised and indecently dealt with her son. Mr N was not convicted and the records do not contain a statement from the child or sufficient information to identify the alleged victim or when the offences occurred. In short, the evidence is insufficient to establish that Mr N presents an unacceptable risk to the children of sexual abuse. It is, nonetheless, appropriate for the father to be vigilant when Mr N is around the children. With this proposition he agreed and acknowledged the appropriateness of him entering into an undertaking designed by the ICL to protect the children from unsupervised contact with his step-father.
There is strong evidence that the father’s brother presents an unacceptable risk of sexual abuse to the children. Also, that he is a poor role model who has an alarming criminal history. His criminal history commenced in 1984 with his most recent conviction relates to an offence committed in 2008. Among his wide ranging convictions, a number involve sexual assaults. He was convicted in 1986 of carnal knowledge of a girl under the age of 16, indecent dealing with a girl under 16 and aggravated assault on a female in relation to which, he was sentenced to a term of imprisonment. In 1997 he was convicted of two counts of attempted rape and another rape in relation to which he was sentenced to a lengthy term. In addition to the significant number of matters for which he was convicted on that occasion, a further 109 charges were taken into account. He has later convictions, relevantly for threatening grievous bodily harm. Police records show that when granted parole he was subject to a condition that he was not allowed to have unsupervised contact with children under the age of 16. It appears that Mr G Houston’s 1997 convictions relate to a complaint made by his then primary school aged step-daughter that on three occasions he inserted his penis into her vagina. Mr Houston’s parole conditions indicate he was assessed as being a serious risk to children under the age of 16 years. There was no evidence presented to this Court which would cast doubt over the accuracy of that risk assessment and it is accepted.
According to the mother, the father and his brother were close and while G Houston was in gaol whenever he telephoned the father rushed to take the call. From the children, she understands they have stayed with his brother’s partner who babysat them on an occasion when he and the father went out together.
The father agreed he took calls from his brother from prison. He said this was a long time ago and occurred on a small number of occasions. It is the father’s evidence that the children have seen his brother once since the parties separated. That occurred when, on the father and children’s return drive from T, they visited a relative in Brisbane. Unexpectedly the father’s brother turned up. At no stage were the children alone with his brother.
The father explained that when, as children, his parents separated his brother moved to Queensland with their mother and he stayed in New South Wales with their father. His point being, that, in effect, the siblings went their separate ways long before his brother embarked on his criminal endeavours and they are not close. It is not his intention or expectation that the children would have contact with his brother. He agreed to an injunction to this effect. I am satisfied the father will act protectively and that the children are not at risk in his care of being sexually abused by his brother or their step-grandfather.
I have already referred to evidence in relation to P. The only additional significant evidence is that C told the Family Consultant P “raped” her. Appropriately the Family Consultant did not question C about the specifics of her allegation. As that term is commonly used, it describes “sexual intercourse without consent”. It will be recalled C had discussed P’s actions on a number of occasions but never alleged rape. Thus, as time passes it would appear her version of events is changing and moving closer to the claims the mother has made about P for a long time. It is important that those who are responsible for helping the child do not inadvertently create records which suggest statements made by the mother are attributed to the child. For example, the X Hospital referral form dated 7 December 2010 describes current concerns in relation to the child as:
Young person has experienced significant trauma and disrupted attachments. History of physical and emotional abuse by father. [C] recently moved in with mother Oct 10 after disclosing being repeatedly sexually assaulted by neighbour since age 12…
The disclosure there attributed to C was not made by her but by the mother.
In any event, I consider greater weight should be attached to C’s earlier statements about P rather than those which are evolving whilst she resides with the mother. Because P did not give evidence it is not possible to be definitive about what may have occurred between him and C. On the less contaminated (by the mother’s) version it would appear P may have asked C to engage in some form of sexual contact which she refused. It does not appear he attempted to coerce her. One of the SMS messages tends to suggest he planned to ask her again.
C’s medical notes indicate she is sexually active and for most of 2010 had a boyfriend who she had recently discovered was bisexual. Although it is impossible to discern with whom C has been sexually active, her statements suggested it was not with P. Nonetheless, it is appropriate for a degree of vigilance in relation to the children’s contact with P and preferable for them not to be alone with him. If, however, further evidence comes to light which shows that the magnitude of risk is higher the father should consider moving. In the meantime, I am satisfied he will be appropriately vigilant.
The Family Consultant explained that presently C would not be able to spend time with the father at his home for fear of contact with P. Indeed, the Family Consultant considered one of the advantages of the father’s relocation proposal was that it would be easier for C to rejoin her father and sisters if they moved.
There was considerable evidence given by the mother about family violence by the father. Essentially, this related to his alleged mistreatment of her in the children’s presence prior to separation and mistreatment of the children prior to and after separation. None of these matters were raised with the father in cross-examination. Perhaps, the view was taken that the inconsistencies between Police records, the mother’s Victims Compensation claim and her evidence when combined with the passage of time and her various agreements that the children live with the father, made exploration of this issue unnecessary. It is, however, clear that years ago the father used a belt on the children. He acknowledges this was inappropriate. According to him he would not use a belt on the children again. I accept his evidence and am satisfied there is no risk of physical abuse by the father of the children.
I turn then to consider the children’s relationships with their parents and each other. There is ample evidence that for years the children have been in the midst of intense parental conflict. They have heard their father abuse the mother and use demeaning language to and about her. Although he denied doing so, I am satisfied he encouraged them to abandon reference to her as “Mum” in favour of her Christian name. He tolerated C’s refusal to speak to or see the mother and, at best, made a half-hearted attempt to resolve the impasse which developed between her and mother. Letters the mother sent addressed to the children were too often returned to her. He did not do enough to make it easy for the children to have pleasant telephone conversations with her. The net effect of the father’s actions was that the children believe he did not support their relationship with the mother and viewed her parenting capacity in a highly critical light.
That said, however, the daily telephone calls from her in the circumstances of this case were unwise and oppressive. Her complaint that messages were not returned is illustrative of her attitude to the children’s contact with Mr S. Had the children returned her calls it was just as likely he would answer as the mother. On the other hand, the mother sought to persuade the two younger girls to view Mr S as “Dad” and, as their discussion with the Family Consultant revealed, she criticised the father to the children. She complained to Police about him and instigated investigations which involved the children in her generally baseless complaints about their father. It is unnecessary to go on. The net effect of the mother’s actions was that the children believe she considered they were unsafe with the father and highly critical of him.
It is appropriate to observe the parental conflict has taken a heavy toll on the children.
Probably the best evidence about the nature of the children’s relationships is contained in the Family Report. While I accept that the children may behave differently elsewhere, these children are sufficiently mature and aware of the significance of the Family Consultant’s assessment to have been frank with her and display their genuine feelings.
At the observation session with the Family Consultant, C was given the opportunity to avoid contact with the father, yet chose to see him. When she saw him, she walked to him and gave him a kiss. When an issue developed between C and R, C sought her father’s intervention. The tenor of C’s discussion with the Family Consultant was that she is angry with her father and not yet ready to see him. This is somewhat at odds with their interaction during the Family Report interview. Perhaps, her anger is tempered by her recollection (as reported in Police and DHS records) that he had competently cared for her for years.
C’s relationship with the mother is, at present, valued by C and it is her strong preference to reside with her rather than the father. No distinction is drawn by the Family Consultant between C’s behaviour in the observation session with the father compared to the mother. In C’s counselling and hospital notes there is ample description of warm and pleasant contact between her and the mother.
To the Family Consultant the younger children made plain their desire to live with the father and, at least impliedly, each other. R provided reasons why she perceives her mother is untrustworthy and having provided inconsistent care. She is keen to spend time with C but not if this involves contact with their mother. J also misses C and was able to explain her reasons for not wanting to spend time with the mother.
The interaction between the younger children and the father was comfortable and indicative of a companionable relationship between all three. When C joined them, the three children related reasonably amicably, although C was fairly confrontational towards R.
When the Family Consultant observed the children with the mother, there was no obvious difference between the way J behaved towards the mother and her interaction with the father. J accepted a hug and kiss from the mother and chatted happily. R avoided the mother’s kiss and when the mother sat near or spoke to her the child refused to engage.
Because of the level of conflict between the parties to which the children have been exposed, their relationships and views about their parents are tainted. Both parties are responsible for the dramatic disruption to C’s relationship with the mother and her obvious sense of being caught between them. However, she has a better relationship with the father than she presently appreciates and it is important that the current breach is addressed. C’s relationship with the mother also has positive and negative elements. It is far from certain that their relationship will endure or that the mother is capable of addressing her elder daughter’s emotional and psychological needs long term. If C continues to live with the mother and Mr S she may well require a level of support from the mother which she is unwilling or unable to provide.
It can be very difficult for teenagers to reconcile with a parent once the child has taken a stand against that parent. Should C’s relationship with the mother fail, I agree with the Family Consultant, that it is essential she feels able to reconnect with the father. Her mental health crisis is, however, a compounding factor and requires a careful approach, particularly if reconciliation with the father involves steps rejected by C. Provided they are willing to talk to the father, C’s treating psychiatrist and counsellor are ideally placed to advise him when and how to reconnect with her. Because of the mother’s antipathy towards the father, the longer C stays with her, the less likely she and the father will be reconciled.
There is even less reason to be optimistic for the future of R’s relationship with the mother and the benefit to them of therapeutic intervention. I do not accept that it is safe for R to spend time with the mother at her home and I am persuaded that forcing R to spend time with the mother will dramatically increase the stressors in the child’s life. The father is not very skilled in how he manages teenage issues and it is quite likely that orders which require him to ensure reluctant R’s contact with the mother may harm her relationship with him. Simply put, it is in R’s interests to maximise the beneficial aspects of her strong relationship with the father and for these not to be compromised by attempts to maintain, at best, a tenuous relationship with the mother, the benefits which are sadly limited and not valued by the child.
When the Family Consultant discussed the father’s relocation proposal with J she was enthusiastic about it. As has been mentioned earlier, this has been a long-term plan for the father and children. The Family Consultant explained that J’s apparent lack of concern for what this would mean in relation to contact with the mother “suggests that whilst she has managed to maintain a relationship with the mother, it is not her current priority”. I agree with the Family Consultant that this is likely the reason for which may be J’s experience of the mother as inconsistent and having spent minimal time with her. I also agree with the Family Consultant, that notwithstanding J’s views to the contrary, she should continue to spend time with the mother with the frequency provided for in the current orders. While this provides obvious limitations about the sort of activities they may share and deprives J of the opportunity to spend time with the mother at her home, risk issues necessitate this approach. I also agree with the ICL that by the time J is 13 years, she should be free to choose whether she continues to see her mother. By then, as is likely, if she maintains her current view, forcing contact will only bring the child into conflict with both parents.
It will immediately become apparent this poses a real conundrum in relation to the younger children’s contact with C. C is unwilling to return to the W area for reasons which can be readily understood. The father could, however, deliver J to the mother at a transport hub some distance from W. For example, at Central Railway Station. Although his car is unreliable there is no reason public transport cannot be used. Similarly, when C is agreeable, arrangements could be made for her to spend time with her sisters at her paternal grandfather’s home. The reality is, however, that it appears likely that for a while C will have little contact with her sisters. This is a sad outcome for these children who, notwithstanding their disagreements, are close and whose relationships should be nurtured.
I do not propose to dwell further upon the parties parenting capacity and their respective abilities to meet the children’s needs. Analysis of the mother’s childhood would go a long way towards explaining why she struggles as an adult. I doubt the father anticipated he might need to raise three girls largely on his own. He has done his best and, putting to one side those issues which have already been discussed, he has done a pretty good job. So that it is clear, in his care the children have had stable accommodation, attended school regularly where they have done well, their physical needs have been met and they have holidayed annually. There is no doubt they have had, in effect, his undivided attention.
Turning then to the father’s relocation proposal. To recap, two years hence he plans to move to Queensland with the younger children. I observe the plan is of such duration it is also feasible it may never happen. The father would move at the commencement of a school year so that the children’s education would not be unduly disrupted. R would be 15-16 and J 13-14. C would be on the cusp of adulthood. The younger children and father hope C would move with them. The children would attend a local school and they would live in rented accommodation. It would appear, the rationale for the move is that the father and younger two children simply like the area and this is where they want to live. While the father is not required to demonstrate good reasons for wanting to relocate, reasons can illuminate attitudes to their children’s relationships with the other parent. Notwithstanding the matters which I have already discussed in relation to this issue, the father is not in any rush to relocate and does not appear to be motivated by anything other than an opportunity for a different lifestyle and perhaps a fresh start. In the circumstances this is understandable.
The parties agree the distances between the Central Coast, where the mother lives, and T plus their modest financial circumstances means time between the younger children and the mother could only occur during school holidays. The father would probably return to the W area annually and is willing to facilitate contact in accordance with orders and/or their wishes.
The mother is concerned about her ability to afford the cost of travel to T and accommodation. Even if she is able to obtain paid work her financial situation will be difficult. Mr S is unlikely to work again. At best, it would seem reasonable to anticipate the mother would manage one trip each year to Queensland. Thus, the opportunity for face to face contact between the siblings is significantly reduced as is the opportunity for contact between the children and the parent with whom they do not reside.
However, two years hence it is impossible to predict C’s circumstances or preferences in relation to contact with the father and sisters. Unless R’s attitude towards the mother dramatically improves, which is unlikely, in relation to this issue whether they live in the same State will probably be of no moment to R or indeed J. At best provided J has an opportunity for occasional contact with the mother she would be content.
Neither R nor J perceives any disadvantage if they move to T. Their positive attitudes indicate that they are likely to take changes to friendship groups, where they attend school and live in their stride. While they have lived in the same place all their lives and not changed school other than for R to transition to high school and thus, cannot know how they will feel, they know T well and want to be there. Such a move would put distance between them and much of the unhappiness which has swirled around them for a long time.
Of course, at T, the children are closer to their step-grandfather. My findings in relation to the magnitude of risk which is involved in contact with him mean this should not stand in the way of the children being permitted to move.
I have made observations about aspects of the parties’ attitudes to the children and parental responsibility. It is unnecessary to say more and sufficient to observe that in relation to these matters, I agree with the Family Consultant.
The Act requires that the Court consider whether it would be preferable to make the order least likely to lead to the institution of further proceedings in relation to the children. Irrespective of which application succeeds, there is a prospect of further litigation. The point being, issues in relation to parenting capacity, the parties’ willingness and ability to promote the children’s relationship with the other parent, the children’s ages and views and risk issues mean that the prospect of further litigation cannot be avoided. Accordingly, it warrants little weight.
There is considerable overlap between s 60CC(4) and (4A) with s 60CC(3). Post-separation, by and large major long-term decisions have been made by the father alone. This is consistent with orders and no criticism is made of him for so doing. More, however, could have been done by him to keep the mother informed about significant events in the children’s lives and their schooling. Of course, she could have done much more to put herself in a position where she could be accepted by the father as being able to focus upon the children’s rather than her own interests when contributing to decisions about them.
The mother has paid the statutory minimum child support, which given her circumstances, does not warrant criticism.
There are no further s 60CC matters which require consideration.
Conclusion
It is not in R and J’s best interests to vary the current order that the father have sole parental responsibility for them in favour of an order for equal shared parental responsibility. Not only are the parties chronically unable to communicate constructively in relation to the children but the mother has shown she prioritises her needs ahead of the children’s. Her contact with these two children is limited and unlikely to increase. This means she has little capacity to understand their needs and feelings and thus contribute to those decisions which come within the purview of equal shared parental responsibility.
The parties agree orders in relation to C will be discharged. Thus, I must apply a presumption that it is in her best interests they have equal shared parental responsibility. I am strongly satisfied the application of the presumption is not in C’s best interests. The parties’ views about what is in her best interests are widely divergent. Their appalling parental relationship and inability to communicate would result in important decisions becoming hostage to these intractable parental problems. Because C presently wants to live with the mother there is some attraction to an order that she have sole parental responsibility. However, the mother’s parental judgment is sufficiently compromised that such an order is contraindicated. The better outcome is for the statutory scheme of parental responsibility to operate. In this way, both parents maintain obligations and parental responsibilities for C and are able to make decisions. She is likely to require ongoing support from a variety of agencies who, under the statutory regime, would not be hamstrung by either a parent who lacks parental judgment being the sole person with parental responsibility or caught in conflict between two divergent views potentially with one parent having little current information about her wants and needs.
The mother’s application to increase her time with the younger children will be refused. In relation to R, it is appropriate to respect her views and thus discharge orders for her to spend time with the mother. The essential structure of arrangements for J to spend time with the mother will continue until she is 13 and then for so long as the child wishes to do so. As I trust I have explained it is my view that imposing orders beyond that age is likely to increase the risk of conflict between the children and both parents. This would not be in the children’s interests.
It is appropriate both parties contribute to the effort and expense associated with J’s time with the mother. The mother proposed that changeover take place at the Hawkesbury River. The father’s car is not so reliable that this is feasible. The mother’s car is more reliable. On balance, the most appropriate order is one which maximises the likelihood C will see J. Thus, on those occasions when C accompanies the mother changeover will occur at Central Railway Station or such other place as the parties agree. This involves considerable effort by both parties but is a venue which is a transport hub, away from W and where the mother is likely to find enjoyable activities for the children.
Provision will also be made for the father to relocate no earlier than January 2012. This accords with long term plans and desires and will give the two younger children at least, a fresh start. I do not consider the children’s relationships with the mother are likely to be adversely impacted on. While it is quite possible it will make it harder for the father and two younger children to maintain contact with C, it is impossible to predict what her circumstances may be two years hence. Accordingly this issue warrants little weight.
It is appropriate that professionals who work with the children have access to the Family Report and the Court’s reasons. Publication of these documents will provide useful background.
My reasons and the Family Report will also be provided to DHS. It is important DHS is aware of the Court’s findings about the risks to C in her mother’s care and does not view this Court’s adjudication of the parenting application as meaning the child is safe. As would be apparent the Court had limited options and, once DHS declined the request to intervene, was left with only one place C said was acceptable to her. I point out there is no order that C lives with the mother. Action by DHS in relation to C, for example, to require the mother to accept their supervision or remove her if this is safe, would not bring them into conflict with orders under the Act. At both parties requests the injunction in relation to Mr S will no longer prevent C from residing in the same home with him and the mother. I have found it difficult to give this agreement the Court’s imprimatur. However, it is apparent neither the parents nor agencies such as Police, DHS, C’s counsellors and medical practitioners have taken steps to enforce the order. I infer this is because the mother refuses to separate from Mr S and they have been terribly concerned C may, as she said she will, attempt to kill herself if she is removed. This Court cannot place children in the hands of reluctant carers and it is thus inappropriate to continue an order which will not be enforced.
The remaining orders are self-explanatory and are designed to ensure compliance with these orders and provide for adequate information to pass between the parties.
For these reasons, I make the orders identified at the beginning of this judgment. In the difficult circumstances of this case, I am satisfied they are in the children’s best interests.
I certify that the preceding one hundred and seventy one (171) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan delivered on 10 June 2011.
Associate:
Date: 10 June 2011
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Injunction
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Natural Justice
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Procedural Fairness
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Remedies
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