Samson and Samson

FAMILY COURT OF AUSTRALIA

SAMSON & SAMSON

[2008] FamCA 362

FAMILY LAW – CHILDREN - With whom a child spends time - Best interests of child

Family Law Act 1975 (Cth)

APPLICANT:

MR SAMSON

RESPONDENT:

MRS SAMSON

INDEPENDENT CHILDREN’S LAWYER:

GODDARD ELLIOTT

FILE NUMBER:

DGF

2749

1999

DATE DELIVERED:

26 May 2008

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

MUSHIN J

HEARING DATE:

9 - 10 October 2006

REPRESENTATION

THE APPLICANT:

In person

COUNSEL FOR THE RESPONDENT:

Mr Eidelson

SOLICITOR FOR THE RESPONDENT:

Monash Oakleigh Legal Service

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Grant

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Goddard Elliott

Orders

All previous parenting orders with regard to the children B born … January 1996 and J born … September 1997 be and are hereby discharged

The said children live with the mother.

The mother have sole parental responsibility for making all decisions with respect to the said children’s long term and day-to-day care, welfare and development.

The children not spend time with the father.

The father be and is hereby authorised to forward to the mother a card and/or gift for the said children on not more than four occasions for each child in each year including the said children's birthdays and Christmas Day, provided however that the mother be and is hereby authorised in her absolute discretion to withhold any such card or gift from the child if she deems this to be in the children's best interests.

For the purpose of paragraph 5 hereof the mother keep the father informed of her postal address and any change thereto from time to time.

The mother cause the following to be forwarded to the father:
i.a copy of all school reports of the children; and
ii.a photograph of each child once a year.

Notwithstanding any other paragraph herein, the mother do all reasonable things to promote a relationship between each of the children and the father including enabling them to spend time and communicate with him if they express a wish to do so and she regards it as being in their best interests.

For the purpose of paragraph 7 hereof the father keep the mother informed of his postal address and any change thereto from time to time.

10.General liberty be reserved to both parties to apply.
IT IS CERTIFIED
11.Pursuant to Rule 19.50 of the Family Law Rules 2004 (Cth) this matter reasonably required the attendance of counsel.

IT IS NOTED that publication of this judgment under the pseudonym Samson & Samson is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: DGF 2749 of 1999

MR SAMSON

Applicant

And

MRS SAMSON

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

At the time of the trial of this matter, the children of the parties, who are the subject of these applications, were aged 10 and 9 years respectively. The essential issue is whether the father, who has not spent any time with the children since approximately January 2005, should do so, and if so, in what circumstances.
The mother's opposition to the father spending any time with the children is based on her assertions as to his past behaviour and his alleged inappropriateness as a role model for the children. That behaviour includes alleged serious family violence and various criminal offences, the most important of which was his imprisonment for the indecent act and unlawful assaults of two young girls.

CREDIBILITY

There are very significant differences in many relevant facts in this matter. Accordingly, it is regrettably necessary to make findings with regard to the credibility of each of the parties because the details of the disputed facts have a significant and direct bearing on my findings as to the best interests of the children.
While I will detail my particular findings as to credibility in due course, by way of general finding, as between the evidence of the father and the evidence of the mother, I prefer the evidence of the mother unless stated to the contrary. My fundamental reason for that finding is the father's failure to recognize and acknowledge the significance of his previous conduct, particularly with regard to sexual matters, and to do anything to establish that even if he was a risk to children in the past, he is no longer such a risk. In my view, the father has not been frank on fundamentally important matters with either the single expert to whom I shall refer in due course, or the Court, thereby casting a shadow over the whole of his case.
The father alleges that the mother's credibility is questionable because of her attitude to his contact with the children. As I will detail in due course, the mother has acted in a protective manner towards the children and I do not regard those actions as having adversely affected her credibility.

BACKGROUND FACTS

The parties commenced living together in what is known as a de facto relationship in February 1989 and married in February 1994. They separated in February 1999 and a decree absolute of dissolution of their marriage was granted in May 2000.
The father has two other children from separate relationships. At the time of the trial they were aged 24 and 22 respectively. The father is totally estranged from both of those children.
As noted above, the parties have two children of their marriage, both of whom are the subject of these applications. They are B, born in January 1996 and J, born in September 1997. Both children have lived in the primary care of the mother since the parties' separation. Following that separation, the father spent time with them regularly. However, that came to an end in circumstances which are in dispute between the parties. The father asserts that the mother simply turned the children against him. The mother asserts that she stopped the father from seeing the children when he informed her of the fact that he was going to prison for sexual offences which I will detail below. Given that the father was spending time with the children on a regular basis, apparently with little difficulty and that he was convicted of serious criminal offences relevant to the question of any risk to the children of his spending time with them, having pleaded guilty to those offences, in my view the probabilities are highly in favour of the mother's version of these events.
The father alleged that he last saw the children in January 2004. He swore that "the mother unilaterally stopped all contact after that time." The essence of that allegation was that the mother had no reason to stop contact. By contrast, the mother alleges that the father displayed a lack of interest and involvement with the children and swore, with regard to the access arrangements (as it was then called) that:
he did not exercise these at any time to spend quality time with the boys. … In the past he has promised the children the world and delivered nothing, leaving me to pick up the pieces. An example of this was when he told the children that he was going to the Northern Territory and would send them presents when in fact he was incarcerated for crimes against children under the age of 16 years and the boys received nothing.
The mother swore:
When it became clear that the [father's incarceration] was due to his commission of a sexual offence against a child under 16, I no longer felt it was appropriate or in the children's best interests for them to see their father. I was worried about their safety, welfare and the risk of further emotional, physical and physiological [sic] harm.
In accordance with my general finding above, I prefer the mother's version of these events to that of the father. There does not appear to be any other reason for the cessation of the ongoing situation whereby the father and children were spending time together on a regular basis.

The father's criminal history

The father has admitted that he has been in prison on four occasions. During his opening, the father told me that his previous offences had been "housebreaking, assaults, anything, everything when I was a young fellow." I now summarise his criminal history:
a)between August 1969 and October 1972, seven appearances in the State Children's Court, resulting in adjournments or convictions for offences including larceny, being unlawfully on premises, housebreaking and stealing. The most relevant of those occurred in 1970 when the father was convicted of assault with intent to carnally know a girl aged between 10 and 16 years and was committed to the care of the Social Welfare Department;
b)1973, convicted of rape, housebreaking with intent and stealing. Sentenced to six years imprisonment for the rape, actually served a minimum of three years and was then paroled;
c)1977, 14 days imprisonment for theft;
d)1978, convicted of burglary with intent to steal and sentenced to nine months imprisonment to be served by way of attendance centre order;
e)1979, sentenced to nine months imprisonment for breach of parole;
f)between February 1983 and May 1987, seven appearances in various Courts resulting in convictions or adjournments for theft, driving unregistered motor vehicles, assault with a weapon, wilful damage of property, making a false statement, driving whilst disqualified and being unlawfully on premises;
g)1990, convicted of rape and two counts of indecent assault, sentenced to imprisonment for 18 and 15 months respectively, sentenced to a total of 18 months imprisonment with a minimum of 12 months;
h)1990, convicted of unlawful assault and breaching an intervention order, sentenced to one month imprisonment on each charge to be served concurrently;
i)between May 1993 and May 1997, three appearances in Court convicted of obtaining social security by deception, obtaining property by deception, theft and handling, receiving or retaining stolen goods, fined and sentenced to three months imprisonment to be served by way of intensive correction order;
j)2001, convicted of stalking another person (the mother) and sentenced to nine months imprisonment, eight months and two weeks of which were suspended for a period of nine months; and
k)2002, convicted of two counts of committing an indecent act with a child under 16 and unlawful assault. Sentenced to an aggregate of 18 months imprisonment to be served concurrently with a non-parole period of 12 months.
I now refer to the last of those convictions being the indecent acts and assaults. The father has explained those matters to various people, including the psychologist, in a less than frank way. He told me that he "was under the influence of alcohol" and had been "staying at the person's place and we'd partied and it was three o'clock in the morning. I'd been staying in the room that the children were in but they had been away for six weeks." The children referred to are not the children who are the subject of these applications. He then said:
I've gone in, hadn't turned the light on or anything, got into the bed and there was a child there so I got out and went to go to the other bed and there was another child there so I ended up sleeping on the couch.
I expressed surprise that he had gone to jail for such an incident to which he replied: "I've had prior offences before."
The father said similar things to the psychologist. He claimed that he had "no sexual contact with either child.” When asked why he was convicted of these offences, the father said:
“‘because of my past. I have been in trouble. They frown on my past’. Upon further clarification, he said that he pleaded guilty to the charges as he did not want to traumatise the children (the children involved in the offences).”
By contrast, the documents which were subpoenaed from the Victoria Police contain a summary of the facts of the charges prepared by the police "as a guide only". The summary states that with regard to the first three charges, in December 2001 the father had gone into the bedroom of two girls, (siblings) aged 11 and 10 years:
“He got into bed with [the younger child] on three separate occasions and placed his hand under her nightie and touched her breasts. He then put his hand under her underpants and rubbed her vagina. One of these occasions was witnessed by [the girls' eight-year-old brother]. He saw [the father] in [the younger child's] bed.
In relation to the fourth charge, the summary states that the father also went into the bedroom of the 13-year-old female sibling of the above-mentioned child “and placed his hand on the inside of her upper leg, under her clothing. [She] awoke and hit [the father] on the back, he then left the room.”
The summary further states that in March 2001 the father was at the same home as that in respect of the previous matters and that:
At approximately 12 noon he pushed his belly into [the 13-year-old female's] pushing her up against the wall of the office in the shed. She has tried to move away and he moved with her. She was able to push him away and he then blocked her from leaving the office. He let her out stating, “‘you're too young’ as she pushed past him and ran to her father. She stated to police that [the father's] actions indicated to her that he was trying to molest her.
In interview, the father made no admission and stated that he had no memory of the allegations. He said that “he treated the children like his own and was helping [their father] with them. He stated that he had consumed approximately 15 cans of full strength beer and was extremely intoxicated.”
It is incomprehensible that on the father's own version of these events, namely that he simply got into the wrong bed on two occasions, that he either pleaded guilty or having done so and been sentenced, did not appeal against the sentence. The criminal history record indicates that he did file an appeal, presumably against the sentence, but abandoned it before it was heard. In my assessment, the father not only pleaded guilty but did not challenge the prosecution's version of the facts. Had the facts been in accordance with the father's version, it is extremely unlikely that the penalty would have been as severe as it was, even given his appalling criminal history.
Accordingly, I find that the father has, at best, not made a complete disclosure of these matters and more likely is in denial and has been so ever since the events. He does not recognize the seriousness of these events, a matter to which I will return in due course.

Family Violence

On the issue of family violence during the parties' marriage, the mother swore:
The children have witnessed the father hit me, abuse me and threaten me to a point where I was pleading for my life. These incidents have left the children withdrawn and frightened as well as made them angry and confused. I saw the terrified look on their faces and heard the fear in their voices when they begged their father to "stop". These incidents, amongst other things, led to the installation of closed-circuit cameras around the perimeter of my home.
There is considerable material in the mother's affidavit detailing alleged physical violence by the father against her. That material includes police statements relating to stalking, threats and like matters. They are very serious and disclose a pattern of behaviour by the father which is extremely disturbing.
While the father admitted verbal violence which, he alleged, was perpetrated not only by him but also by the mother, he denied having perpetrated physical violence against her.
The entirety of the circumstances surrounding the father's criminal history, the fact that his history involves violence including very serious sexual violence and his inability to come to terms with any of his unsatisfactory behaviour, together with the evidence by the psychologist referred to below with regard to the father’s statements to him on this matter, lead me to the conclusion to the highest degree of probability that on issues of physical violence, the mother's evidence is to be preferred to that of the father. Accordingly, I find that during the parties’ relationship the father perpetrated significant physical violence on the mother on many occasions. Further, I find that the children experienced that family violence with sufficient regularity and severity to cause them to refer to it as a negative matter in their relationship with their father.

The expert evidence

A very highly qualified consulting and forensic psychologist was engaged by the parties to report to the Court in this matter. The psychologist interviewed the parties and the children on two occasions and prepared two reports. The first of those reports arose out of interviews conducted in February 2005 and the second from interviews in August 2006. In addition, the psychologist read relevant documents in these proceedings including some subpoenaed documents. He was also cross-examined during the trial.
The entirety of the psychologist's evidence was of great assistance. It was consistent and plausible. While I ultimately disagree with the psychologist's recommendations, the evidence has helped me come to grips with the difficult issues in these applications.

The first report

The psychologist's first report commenced with a detailed description of his interview with the mother. Initially, the mother made it clear that she was resisting any order for the father to have any contact whatsoever with the children. She described her parenting of the children as not involving consultation with the father. The report recorded that she asserted "that both verbal and physical altercations have occurred between the father and her. She said that the boys have been exposed to some of these.” When asked by the psychologist what effect it had on the boys at the time of exposure to the altercations, the mother said, “they would scream and cry”. The report states that:
The mother said that there had been ongoing effects on [B] from having been exposed to the aforementioned altercations. She described [B] as "depressed" as well as having "uncontrollable mood swings. He is violent. He has trouble making friends". She said that [J] has had no ongoing problems associated with the aforementioned altercations."
B had been seeing a councillor since November 2004 on a fortnightly basis and had also seen a psychiatrist. She said that the aforementioned symptoms emerged “since he ([B]) was three years old, since the separation”.
The mother informed the psychologist that as a result of the above behaviours, the children did not want to see the father at all. The psychologist reported the mother as having told him that they had both “expressed a wish to have no future contact with the father as recently as the morning of the present interviews.”
The father told the psychologist that he sought contact with the children on alternate weekends, half of all school holidays and half of special dates. He said that the appropriate handover arrangements should be such that he have no involvement with the mother.
The father also acknowledged to the psychologist that both verbal and physical altercations had occurred between the mother and himself. The psychologist asked the father what effect it had on the children to be exposed to the altercation. The father responded: “They were upset about it.” He said that B behaved differently after the altercation “for a little while”. The father did not regard there having been any negative effects on J’s relationship with him by virtue of being exposed to any altercation. The father “expressed concern that the mother has taken [B] to see a counsellor. He said that [B’s] behaviour has never suggested to him any need to see a counsellor.”
The father also referred to his own incarceration between June 2002 and November 2003. He told the psychologist than it was in respect of “an indecent act on a minor under 16”. He said that he had been intoxicated at the time of the offence. He had participated in a treatment programme and had also attended an anger management program.

The psychologist first interviewed J. J declined to visit his father again “because I just don't want to”. Further, “because I just don't want to see him and that's all”. When asked about his perceptions of his mother's views towards his father, J said: “he thinks she is stopping me and [B] from seeing Dad but that's not what Mum is doing. She just is doing what is right for us”. J also declined to participate in an observation session with his father.
The psychologist then interviewed B. B recalled that his father promised to buy him and J something and had broken that promise. When asked about visiting his father he said: “He just left us being bored all day. … mostly not fun. … all he used to do is lie to us. … he said he was going to the Northern Territory and he was in jail.” B said that he missed his father “a little”. B said that his father lied to him but even if he did not lie, he would not want to visit him “because he went to jail”. He understood that his father had gone to jail because he had “punched someone”. B also declined to participate in an observation session with his father.
The psychologist concluded that it was
inappropriate to facilitate an observation session between the child and his/her parent if the child has clearly stated that he/she does not want to do so. Given [J] and [B’s] statements above, the writer did not facilitate an observation session between the children and [the father].
The psychologist then observed the interaction between the mother and the children. He regarded that as being completely appropriate, stating that “[o]verall, the children seemed to enjoy interacting with their mother as evinced by their animated behaviour and by their laughter and smiles.”
The psychologist formed the opinion “that the boys have no effective relationship” with the father and then considered “what potential benefits would there be to the boys in establishing a relationship with the father balanced against the potential difficulties and abreactions.” He determined that the children were “at least adequately settled in their current routines and in the context of their current relationships” and stated:
Given the boys’ clear and unequivocal statements that they do not wish to have future face-to-face contact with [their father], it is the writer's opinion that a high possibility exists that an abreaction will occur the magnitude of which cannot be determined at the present time.
Accordingly, the psychologist recommended that neither child be compelled to have contact with the father in any form but should they express a wish to have such contact, that be facilitated for them forthwith. The mother should undertake to do all things possible to support and encourage such a relationship and also undertake not to denigrate the father in the children's presence or permit anyone else to do so.

The second report

In his second report, the psychologist interviewed both parties and also each of the children. His initial interview with the father was most revealing. The father gave the psychologist a similar explanation for his incarceration for the sexual offences against young girls referred to above, namely, that he was drunk and had simply got into the wrong beds. The psychologist reported:
Upon clarification, he said that he had no sexual contact with either child. When asked why he was convicted of these offences, [the father] said: "because of my past. I've been in trouble. They frown on my past". Upon further clarification, he said that he pleaded guilty to the charges as he did not want to traumatise the children (the children involved in the offences).
The father asserted that those convictions have no bearing on his ability to care for J or B. He asserted that he had been "drunk at the time" and was able to abstain from alcohol during the time he spends with the boys. The father asserted that the mother was alienating the children from him and that when they were with him, she could not help herself from intruding on the time they spent together.
The father told the psychologist that he had participated in group therapy while he was in jail, that having lasted for six weeks for a period of 10 hours per week. He asserted that he had cut down on his drinking. With regard to the father's alcohol intake, the psychologist reported: “[The father] estimated that he drinks up to four standard drinks in seven days and cut down on the amount he drinks 15 months ago.”
In his interview with the mother, the psychologist noted that she knew of the father's charges as including rape, sexual assault, indecent assault and unlawful assault. She did not know the ages of the children involved in the sexual offences. In response to the psychologist’s question as to a person's ability to look after children if they have a criminal record similar to that of the father, the mother stated:
I don't think he can. I'm petrified if he has any access with the children that they will be hurt by him either physical or psychological [sic]. The boys and I have been through enough and I wouldn't want to put them at risk.
The mother told the psychologist that neither child had expressed a wish regarding future contact with the father. When asked about the reasons, the mother reported: “they both said their time with him is boring. They said all they did was work. That their dad did not keep his promises such as to take them out or to buy them take away”. The psychologist asked the mother what she had done to support a relationship between the children and their father to which she said that she had not denigrated him. In response to a further question about her support for the relationship she said: “I'm not going to lie to you. I haven't done anything”. The mother also said:
I've been forthright in my belief to support my boys but I don't treat the boys seeing their father as like going to the dentist. If they have to go the dentist, they have to go. I don't think spending time with the father is beneficial to them because I think they are in harm [sic].
The mother was firm in her view that the children did not want to see the father.
B told the psychologist that he did not want to see his father. He said that his father had been “mean” to him and that he “was yelling and really growling. When he held our hand he used to clinch it really hard”. In reiterating that he did not want to spend time with his father, B said: “He used to do stuff to my mum. He used to punch her”.
Ultimately, B agreed to an observation session with his father on the basis that he knew that the psychologist would observe him through a one-way screen.
J told the psychologist that he did not want to see the father. His reason was: “Because he doesn't give us anything. He lied to us. He said he was going somewhere and that was a lie”. He said that he knew that his father had lied to him “because we went to see him and he was still there”. However, J expressed his willingness to participate in an observation session with his father and B on the basis that it would be observed by the psychologist.
During his observation session of the mother with the two children, the psychologist observed that she had a good relationship with the children, that she was appropriate in her parenting and that they enjoyed interacting with her. They were generally well-behaved, although there were occasions on which she needed to set limits on them. “This she did verbally, directly, gently and appropriately.”
During his observation session of the father with the two children, the psychologist observed the father's behaviour to be:
appropriate at all times while interacting with the boys. For example, he asked the boys appropriate questions about themselves. He was gentle with the boys and he participated in the boys' play activities. [The father] impressed the writer as anxious but, nevertheless, focused his attention on the boys and responded appropriately to them.
The psychologist's observation of the state of the relationship between the father and the children was expressed in his second report as follows:
While a relationship was not obvious between the boys and the father, the writer formed the impression that a foundation existed upon which to build one. For example, both boys proudly showed their father how tall they have grown. The boys, [J] in particular, was responsive to their father's suggestions such as about their school and other activities. The boys seemed to enjoy interacting with their father as evinced by their smiles. However, [B] seemed somewhat reserved with his father. However, he eventually seemed to relax somewhat including disclosing information about himself such as his use of the computer and about the size of his bicycle. The writer notes that [J] disclosed numerous things about himself to his father; [J’s] animated behaviour suggested that he enjoyed interacting with his father. The writer overheard [B] reminisced with his father about his father's false teeth.
The psychologist noted that both boys were well behaved during the observation described in the previous paragraph and that the father had no need to set limits on them. There was no other observation which caused the psychologist concern.
Following the observation described above, the psychologist spent a few moments with each child alone. J expressed himself in relation to his time with his father as: “It was good. It was mostly fun”. J told the psychologist that he would like to spend time with his father again.
Likewise, B was asked about the session and responded: “it was okay but it was half and half. It was half good and half not good.” B said “it was fun playing” but expressed as being not good “having to see him”. B reiterated that he would not like to spend time with his father “because what I told you before”.
The psychologist then turned to an expression of his opinions arising out of his interviews and observations. However, he initially noted the possibility that information which had been provided to him by the parties may not be factual. During cross-examination, the psychologist confirmed that in some circumstances, factual inaccuracies might lead to a change of recommendations with regard to resolution of the matter. Subject to that qualification, the psychologist, in his second report, made recommendations referred to below.
First, the psychologist noted “a good interaction between” the children and the father. He observed:
… while a relationship was not obvious between the boys and their father, the writer formed the impression that a foundation exists upon which to build one. Furthermore, the writer notes that both boys seemed to enjoy spending time with their father including but not limited to disclosing information about themselves and reminiscing with their father about some specific topics. At no time did the writer either overhear or observe anything during the observation session that caused him concern.
By way of summary, the psychologist reported:
Notwithstanding the boys' views expressed above, each child, during his interview, said he would not want to spend time with his father in the future; amongst other things, [B] cited his father yelling at him and failed promises. He also cited altercations that occurred between his mother and father. When asked, [B] said that if his father and he did interesting things together, “that would be good”. However, he reiterated that he would not want to spend time with his father in the future. [J] cited a busy social schedule and gifts his father has not given him as reasons for not wanting to spend time with his father in the future. However, [J] said, when asked, he would like to spend up to 30 minutes with his father if he did enjoyable things with him.
The psychologist then turned to a consideration of the mother's attitude to the father spending time with the children. He noted the mother's “generally negative attitude” towards the father which he described as being “palpable” and “likely to be apparent to most people including [the children].” Further, he recorded that the mother acknowledged “that she had done nothing to support a relationship between the boys and [the father]” and noted that in “his opinion and experience that the best way to ameliorate negative parental influence is for children to have actual experience with the disparaged parent.”
The psychologist noted previous attempts which had been made to facilitate a relationship between the children and the father, for example at a Contact Centre, and could “see no reason why another attempt should not be made”, however he recommended that the father “undertake not to be affected by alcohol during the time he spends with the boys including but not limited to their involvement at [the Contact Centre].”
The psychologist then considered the possible consequences of his recommendation that the children spend time with their father. He noted that the mother was “disturbed” by that prospect. He reported the mother as having said that the boys “were worried about seeing their dad today”. However, the psychologist had not observed either child as being “stressed or worried in any way.” He concluded that he did not anticipate the children being disturbed by spending time with their father. While noting that the recommendation may well be “fruitless”, the psychologist recommended that the mother “undertake to do all things possible to support and encourage a relationship between [the children and their father]”.
The psychologist also recommended that the father “attend and successfully complete a parenting course” as soon as practically possible. Ultimately, the recommendation was that the children spend time with the father on a supervised basis at a Contact Centre. At the expiry of all allocated visits at the Centre, a review occur with a view to making further recommendations.

The psychologist's oral evidence

The psychologist was cross-examined by counsel for both the mother and the Independent Children’s Lawyer (ICL). Despite two invitations from me, the father declined to cross-examine the psychologist. By way of summary, the psychologist maintained the position of his recommendations from his second report that there should be an order for the father to spend time with the children supervised at a Contact Centre, following which there should be a review of what, if any, further order should be made.
However, to his credit the psychologist agreed that there were matters which were of concern with regard to the father's attitude towards parenting. Those matters may be summarised as follows:
a)with regard to the details of the sexual offences against the young girls described above, it would be a matter of concern if the father took the attitude that he had been unreasonably convicted and sentenced, and in particular, had done nothing wrong;
b)on the assumption that at the time of committing the offences the father was, in fact, under the influence of alcohol, “if he were not to be affected by alcohol his judgment may not be impaired in the future and, therefore, may not place the boys at risk”;
c)“I think that the children have to gain from at least knowing their father, family linkages….. I also think that one parent provides an alternative parental style. … I think he can provide the boys with some amusement”;
d)with regard to the proposal that there be an extended period of supervision at a Contact Centre, “… let's see what can happen within the allocated timeframe … have a review and then see once what's happening at that point”;
e)in response to my question that an order that the father spend no time with the children was an option in the psychologist's mind: “I don't know what's going to happen at the end of my proposed supervised prior assessment. That's one of the reasons why I recommended a review at that point. So I'd have to answer your question and say yes, I think it is an option. No contact.”;
f)“adding to what you were saying is I do think that some damage has been done in the boy's perception of their father by the mother. So re-establishing a relationship is going to be, I think, a hard slog. … I think that there hasn't been a supportive environment for their involvement with their father by the mother, so I think they already have an attitude towards their father, correct or incorrect, it is going to be an obstacle to overcome in establishing, you know, a good functional relationship.”;
g)the mother's attitude “… suggests to me that she is not interested in supporting a relationship.”;
h)it would be of concern if the father did not understand the significance of what he'd done in the past;
i)if the father “undertook not to be affected by alcohol, the likelihood of such circumstances occurring again would be minimised”;
j)“I am concerned to hear that the father mislead me and I'd want to know more about the aspects of risks and his boys, but if we could determine that these risks would be minimised -- maybe not eradicated, but minimised, I would still like to see my recommendations put in place.”; and
k)ultimately, the psychologist expressed the view that his proposal was “a worthwhile exercise”.

THE PARTIES' PROPOSALS

The father seeks orders that he ultimately spend time with the children on alternate weekends from Friday evening to Sunday evening. However, he recognises that because he has not had an opportunity to spend time with the children for a considerable time, if he is to be granted orders in those terms there must be a gradual increase commencing with brief periods of time supervised by a Contact Centre or other appropriate person or organisation.
The mother opposes any order that the father spend any time at all with the children. She asserts through counsel that he is a totally unacceptable role model, that he has no insight or perception into the problems which he poses to the children and accordingly should be regarded as an unacceptable risk to them.
The ICL adopts the recommendations of the psychologist and proposes that there be supervised time spent by the father with the children, at least initially at a Contact Centre, and that the matter then be reviewed to determine whether there is any risk to the children or either of them and whether there should be any change in the arrangements.

DISCUSSION

I must regard the best interests of B and J as the paramount consideration in these proceedings. Paramount does not mean “sole”; it means “most important”.
Section 60B of the Family Law Act 1975(Cth) (“the Act”) contains the objects of that Part of the Act pursuant to which the Court decides matters relating to children, together with certain principles underlying those objects. The objects provide for the protection of children from harm, ensuring that children receive “adequate and proper parenting to help them achieve their full potential” and ensuring “that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.”
The underlying principles emphasise a child's “right to know and be cared for by both parents,” and their right to spend time on a regular basis and communicate on a regular basis, with each of their parents. Parents have the shared duties and responsibilities concerning their children's care, welfare and development and to agree about the future parenting of the children. However, it is extremely important to note that those principles only apply if I do not find that they are contrary to the children's best interests.
In this matter, the question of whether the father should spend any time whatsoever with the children is an issue and accordingly, the question of whether that is in their best interests is fundamental.
The structure of Part VII of the Act first requires me to consider the presumption of the parents' equal shared parental responsibility for their children. That presumption is rebuttable in circumstances in which I find that there has been child abuse or family violence. These applications have been presented on the basis that the father will spend either no time at all or only minimal time with the children. In the event that they are to spend minimal time, that is open to be increased at some time in the future, always subject to the children’s best interests. There is no issue that the children will live other than with the mother. Further, no party seeks an order that there be equal shared parental responsibility. In my view, in the circumstances of this matter, that is an entirely appropriate approach and accordingly, it is not necessary for me to consider the presumption and whether it is has been rebutted. In any event, my findings in relation to family violence would lead to my finding that the presumption had been rebutted.

The second matter which I am required to consider is the question of the parties having equal shared time with the children. While that consideration is only a strict requirement in the event that equal shared parental responsibility applies in accordance with the previous paragraph and on the basis of the same reasoning as in that previous paragraph I do not regard the question of equal shared time as being relevant in this matter. On any view, the children will live in either the exclusive or overwhelmingly primary care of the mother.
Similarly, it is not necessary for me to consider whether the father should spend substantial and significant time with the children, again on the basis of the way this matter has been put to me.
The real issue for my consideration is how much, if any, time the father should spend with the children. In my consideration of that question, I must first regard the children's best interests as the paramount consideration, secondly, consider the objects and principles referred to above and thirdly, consider the various primary and additional considerations set out in section 60CC of the Act. Accordingly, I now turn to that last mentioned section.
There are two primary considerations. The first is whether it would be a benefit to the children to have a meaningful relationship with both their parents, in this case, relevantly, their father. There is evidence on both sides of that question which I will analyse below. It is the ultimate issue in these proceedings.
The second primary consideration is “the need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.” There are several matters which need to be taken into account in this consideration. The first of those is the question of family violence. I have already made findings with regard to that issue. The children's experience of family violence between their parents is, in my view, at least psychologically harmful to them. The fact that they remember that violence a considerable time after their parents separated reinforces that finding.
There is no evidence to suggest that the father has perpetrated physical or sexual violence on either of the children. There is no allegation to the contrary. Further, I am not satisfied that there is any real risk of such violence or abuse by the father against either of the children. There is no suggestion of any neglect of the children by the father.
I now turn to the additional considerations as required by the statute. The first of those concerns views expressed by either child together with the issues of relevance and the weight to be placed on any such view. As noted by the psychologist in his first report, at the time of that report the children were too young to express any view. In the second report, the situation had changed, at least in part. The psychologist's evidence satisfies me that the children expressed some ambivalence with regard to spending time with their father. On the one hand, the very small amount of contact that they had had with him made it difficult for them to express any positive view. Their views had been derived from their past experiences with him which appeared to have been almost entirely negative. However, there were some positive expressions by the children which cannot be disregarded. Those positive expressions gave rise to the psychologist's recommendations that the father be given an opportunity to spend time with the children. Nevertheless, given the children's very young ages and their very limited experience of their father, placing significant weight on any wish is, in my view, a very risky undertaking.
I now give consideration to the nature of each of the parent's relationship with the children. The psychologist's evidence satisfies me that the mother has a close, nurturing and loving relationship with each of the children. That evidence is completely in accord with my observations. In my view, the mother has done a remarkably good job of parenting the children, particularly given the very considerable stresses which have been placed on her by the father.
By contrast, the father's relationship with the children is, at best, very limited. While he spent time with the children on a regular basis prior to his incarceration, he saw them on no more than a few occasions following that incarceration and, at the time of the trial, had spent no time with them for nearly 3 years. On one view of the evidence, the father has virtually no relationship with the children.
I am then required to consider “the willingness and ability of each of the child's parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent.” During her evidence, the mother was very critical of the father and had nothing positive to say about him. Until the mother learned of the father's impending incarceration, she encouraged the relationship between the children and their father and even took them to see him in jail. However, the circumstances in which she learned of the father's criminal offences relating to the young girls was, in my view, the last element in an ever increasing lack of confidence in her attitude to the father's parenting abilities towards the children. I accept the evidence of the psychologist that since that time, the mother has not promoted the relationship between the children and their father. As I will detail below, in my view, she has been justified in that approach.
During cross-examination, the father was asked whether he regarded the mother as being a good mother. He replied “yes”. He then said: “she is a terrific mother.” He conceded that “… she wants the boys to have the best of everything, and she knows what my past history was, and she knows what it is to this day. We got together even after I told her about it, and she had no problem with it.” He explained the mother's opposition to his spending any time with the children as resulting from the conflict between them, despite the fact that he had previously acknowledged that she acts protectively towards them. In response to the suggestion that a good mother, such as he was describing her, puts the conflict between them aside, he swore “Well, I don't think she's put that aside. She is a good mother, I'm not denying it, and I think it's built into all women that have children, they’re protective of their children. Same as everyone.”
Accordingly, the mother has previously promoted the relationship of the children with their father but has now changed her attitude because of what she sees as being his unacceptable behaviour. On the other hand, the father acknowledges that the mother is a good parent and acts protectively towards the children. However, he does not accept that in her opposition to his spending time with the children, she is acting protectively. In my view, that is one of the fundamental issues on which I must decide these applications.
I must then consider the likely effect of any change in the children’s circumstances, including any separation from either parent. There is no question of the separation between the mother and the children, save during periods of their spending time with their father if I were to order that. On the father's part, it is a very long time since he has spent time with the children and any order that he not spend time with them in the foreseeable future would not amount to a further separation. It would only be a prolongation of the present separation.
There are competing factors with regard to the issue of the father’s separation from the children. On the one hand, he has little if any relationship with them and, in accordance with the psychologist's evidence, they are progressing perfectly normally and do not display any anxiety arising out of a lack of contact with their father. On the other hand, the psychologist recommends a resumption of a relationship between the children and their father as being in their interests. However that resumption would be on a very limited basis with a further professional review after a period of time. I particularly note the evidence that the children are functioning appropriately despite the fact that they do not have any communication with their father.
I am then required to consider the practical difficulty and expense, if any, of an order that the father spent time with the children. While there would be some expense involved in time being spent at the Contact Centre, it has not been submitted that it would militate against the making of any order.
I now turn to a consideration of the capacity of each of the parents to provide for the children's needs, including their emotional and intellectual needs. In doing so, I also consider their attitudes to the children and to the responsibilities of parenthood demonstrated by each of the parents. In those regards, my first consideration is of the mother. As previously found, the mother has a very good and appropriate relationship with each of the children, and save for the question of whether she promotes their relationship with the father, no criticisms were made of her parenting. That is in accordance with my observation of the mother.
Conversely, the father's capacities and attitudes leave a great deal to be desired. While I do not have particulars, the circumstances of the father's estrangement from his two other children is concerning. His evidence suggested the possibility of violence in those previous relationships and lack of involvement with the children. That evidence is unsatisfactory and concerning but insufficient to make any definitive finding.
The father's criminal history is extremely concerning. It commenced when he was a teenager and continued until his last incarceration. He has been to jail on several occasions and has been convicted of crimes of dishonesty, physical violence and sexual violence. If those offences had occurred many years ago and he had demonstrated that he had been a law-abiding citizen for a long period of time since, I would be nowhere near as concerned as I am. There is a very disturbing consistency in his very long criminal history.
A further aspect of the father's criminal history is his total failure and refusal to admit to its seriousness. He seemed to be surprised that his criminal history should be in any way relevant to these applications. He does not acknowledge their significance, particularly the significance of the offences for which he was last imprisoned. In my observation, he is in almost total denial of those last sexual convictions.
The denial referred to in the last paragraph also amounts to a significant contradiction in his sworn evidence which is most concerning. On the one hand, he swore that he was drunk at the time and therefore did not remember it. However, he has not explained how he even remembers that he was drunk, particularly given that he doesn't remember any of the other matters. Further, his plea of guilty would indicate an acceptance of what he did, at least at the time that he went to Court in respect of those offences. Also, the father does not explain how, in circumstances in which he was so significantly affected by alcohol, he remembers that he only got into the wrong beds. The fact that he remembers getting into the wrong beds but then remembers nothing else is a fundamental inconsistency which is extremely concerning, both as to his credibility in these proceedings and, in particular, his standing as a role model and parent for his children.
As I have previously found, I do not accept the father's evidence that there was no physical violence perpetrated by him against the mother. I accept the probability that there was verbal violence perpetrated by each of them but my observation of both parties leads me to the finding that to the extent that the mother perpetrated such violence, it was mainly reactive to the father's abuse. As a result of those findings, it is also most concerning that the father does not concede any wrongdoing with regard to the issue of family violence.
It is also concerning that the father has not tendered any evidence to demonstrate that he has done anything to improve his attitudes to parenting. While he gave oral evidence of attending an anger management course and counselling while he was in prison and has apparently had some counselling since he was released, there is nothing to establish those facts or any other related step from any expert witness.
The psychologist's recommendation, supported by the ICL, is for the introduction of a regime by which the father spends limited time with the children at a Contact Centre for a period of time, following which a review be conducted as to the desirability of that continuing and perhaps being extended. In my view, that is a most undesirable course because it virtually guarantees that the parties will be involved in further litigation. In my opinion, the concept of further litigation in this matter would be inimical to the children's best interests. I accept the submission of counsel for the mother that these proceedings should result in final orders.
Having considered what I regard as being the relevant aspects of the additional considerations in determining the best interests of the children, I find that no other factor is relevant to such consideration.

CONCLUSIONS

I now consider my conclusions arising out of the above discussion. In my view, there are difficulties with either decision in these applications, by virtue of neither of them being an ideal result in the best interests of the children. An order in favour of the mother's submission that there be no time spent between the children and their father will have the effect of not enabling them to re-establish and perhaps further that relationship. Particularly in accordance with the psychologist's evidence, that clearly has its drawbacks. Conversely, an order that the father spend time with the children deprives them of the finality referred to above and produces uncertainty as to their relationship with their father together with a very high probability of a return to Court for further litigation. It also exposes them to further interviews and assessments.
On balance, in my view the best interests of the children are served by no order for the father to spend time with the children. My reasons for that decision are as follows:
a)the evidence persuades me that the children are not suffering from not seeing their father:
b)the mother is coping very well in bringing up the children; and
c)the mother's antagonism towards the father is totally justified given his extensive criminal history, his denial of that history and his total failure to prove that he has taken any remedial action, not just for himself but to reassure the mother as to his attitude to the children and in particular, that he would be an appropriate role model for them.
However, the children should be given the opportunity of their relationship with their father being promoted in the future. It is also reasonable to enable the father to have some knowledge of the progress of the children. Accordingly, it is appropriate that the father should be able to send the children presents and cards for such occasions as their birthdays, Christmas and Easter and receive advice about their progress at school and any serious medical conditions which they may suffer. I will order accordingly.

I certify that the preceding ninety-five (95) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Mushin

Associate:

Date: 26 May 2008

[2008] FamCA 362

26 May 2008

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Family Law

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