Souther and Souther

[2008] FamCA 939

FAMILY COURT OF AUSTRALIA

SOUTHER & SOUTHER [2008] FamCA 939

FAMILY LAW – CHILDREN – With whom a child lives – where the parties and the Independent Children’s Lawyer invited the court to make orders providing that the child lives with the father – where this accords with the child’s views and is consistent with the Court expert’s recommendations – risk assessment – where father has been convicted of improperly dealing with the child’s half sister and exposing her to pornography -  best outcome available does not necessarily mean a good outcome for the child - interim orders made

Family Law Act 1975 (Cth)

APPLICANT: Mr Souther

RESPONDENT: Ms Souther

INDEPENDENT CHILDREN’S LAWYER: Ms Callander

FILE NUMBER: BRC 6803 of 2007

DATE DELIVERED: 26 September 2008

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: The Hon. Justice Ryan

HEARING DATE: 25 September 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Renfrew

SOLICITOR FOR THE APPLICANT: Budgen Lawyers

COUNSEL FOR THE RESPONDENT: Ms Garrick

SOLICITOR FOR THE RESPONDENT: Sneddon & Partners

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms O'Rourke

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid Commission of New South Wales

Orders

1. By consent, orders in accordance with the terms signed by the parties, the Independent Children's Lawyer, and dated 25 September 2008.

2. As soon as these orders issue, the Independent Children's Lawyer shall provide a copy of these reasons to the Principal of the child’s school.

3. When the child starts high school next year, the Independent Children's Lawyer shall provide a copy of these reasons to the Principal of his high school.

4. The Independent Children's Lawyer shall liaise with the Principal and/or school counsellors at the school the child attends this year and next so that the school establishes a mentor for the child. Either directly with the mentor or through the school, the Independent Children's Lawyer shall have monthly contact at least with the child’s circumstances.

5. THE COURT NOTES that the agreed orders provide the best outcome for the child in his present circumstances and the limited options available to him.

6. THE COURT NOTES that in the event the child makes allegations of inappropriate conduct or mistreatment by his mother or father, these allegations should be investigated with the utmost priority.

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

FAMILY COURT OF AUSTRALIA AT NECASTLE

FILE NUMBER: BRC6803 of 2007

MR SOUTHER

Applicant

And

MS SOUTHER

Respondent

REASONS FOR JUDGMENT

1. These reasons were delivered orally.

2. The parties and Independent Children's Lawyer invite me to make interim parenting orders which will mean the parties' son, born in April 1996 (“the child”) will move to Queensland with his father.  The mother will remain in New South Wales and he will have regular contact with her, predominantly during the school holidays. 

3. The child has always lived with his mother.

4. In most cases this would be uncontroversial, particularly as this outcome accords with this 12 year old child’s views, and is consistent with the Court Expert's recommendations.  My particular difficulty is that the father has been convicted of indecently dealing, that is sexually, with the child’s half-sister, S and exposing her to pornography.  S was about 10 years old when these incidents occurred.  The mother did not believe S, who went to live with her father.

5. The parties and the child continued to live together until the father was sent to gaol.

6. On 3 October 2005, following his guilty plea to both charges, the father was sentenced to two years imprisonment which was suspended after three months.

7. Whilst the father was in gaol the mother re-partnered.

8. Upon the father’s release the parties re-established contact between the child and the father under the mother’s supervision.  The Queensland Department of Child Safety became involved and for a period of time, stopped contact between the father and the child.  Obviously this related to concerns for the child arising from the father's convictions.  During this period the father was required to undergo a detailed risk assessment, which he did.

9. Following the completed risk assessment, the Department of Child Safety agreed the mother could again supervise the child’s contact with the father.  This was on condition that the periods were brief, in a public place, and the father continued counselling.  Contact under these conditions resumed and it proceeded satisfactorily. 

10. By this stage, S had left her father’s care and was in foster care in New South Wales.  S was unhappy in foster care and wanted to return to her mother.  To enable this to occur, the mother left Queensland with the child and moved to New South Wales.  S returned to live with her mother and brother.

11. After the mother moved the father commenced these proceedings.

12. There was no contact between the father and the child from June 2007 until the child’s birthday in April 2008.

13. Following interim orders made on about 7 May 2008, contact resumed, with the general structure being supervised daytime monthly contact at the central coast and with provision for thrice weekly telephone calls.  The child spent half of the July school holidays with his paternal grandfather in Brisbane, during which time the father had contact with him.  There have been two or three visits now, with the visits not always going terrifically well.  The problems with the visits do not relate to the parties or the child.  Basically the difficulties arise from S’s determination to stop the child being with the father.  

14. S was outraged that the father resumed contact with the child and as soon as had resumed she left the mother's home.  This fairly benign statement hides the awfulness of the mother's home situation. The mother says S was out of control and physically attacked her.  As a consequence the mother ordered S to leave her home.  It appears neither the mother nor S are remorseful about this turn of events.

15. Since then the parties have resumed a cooperative parenting relationship and appear to be able to communicate quite well in relation to their son.  A reading of the single expert's report suggests that it is not beyond the realms of possibility that the parties may reconcile.

16. Because of the complex issues involved, the Court appointed an Independent Children's Lawyer on whose application Ms E was appointed to investigate the child and his family's circumstances.  Ms E is a senior Clinical Psychologist with some 32 years experience in the child protection field.  She was ideally placed to perform the tasks required of her.  Ms E’s report dated 6 August 2008 was released to the parties and Independent Children's Lawyer approximately five weeks ago.  The report is a lengthy and thorough document and at this stage, there is no major attack to the factual matters reported therein.  In making this observation, I have not lost sight of the fact that there are areas of disagreement as far as Ms E’s opinions concerning the mother are concerned which has not been tested.

17. In any event, Ms E concludes that the mother has a borderline personality disorder, poor attachment to her children, and is emotionally abusive of them.  She says [at page 58]:

    [The child] has been highly affected by the dysfunction in his family, particularly since the allegations were made in late 2004 on the subsequent separation of his parents. He has borne the brunt of the mother's emotionally chaotic lifestyle and emotional state. He has made many changes of school and residence; has had to accommodate extreme fluctuations in the mother's attitude towards her daughter and ex-husband; has had to live with several of the mother's new partners ([R] and [M]) and inappropriate boarders for short, unstable periods; has been exposed to assaults on and by his sister of his mother at his house in […], and more recently the assaults on and threats to his mother in May 2008. On top of all of this, [the child] has become the parent to his mother, being hyper-vigilant of her needs and putting aside his own needs for peer contact, outside activities and loss of contact with his father for a prolonged period, in order to care for and please his mother. He ensures she takes her medication and says he is always compliant to her needs/wishes because if she gets angry with him, it may lead to further hospitalisation. He reported recently taking a week off school to care for his mother.  As well, more recently, since she has no partner, [the child] has taken on the role of companion to her and appears to have completely given up his once enjoyed peer relationships.  He appears to have also become confidante to his mother, and has been exposed to adult-type issues which most children of his age do not have to deal with.  It is an intolerable position for such a young boy.  It is really depriving [the child] of a childhood in order that he take on an adult role as primary carer of his emotionally volatile and emotionally unstable mother.  His parentification towards his mother as her sole carer is quite inappropriate.  [The child’s] current relationship viz a vie his mother really presents emotional abuse of this child and is thwarting his normal social emotional development and enjoyment of a childhood.

18. Quite plainly, it is Ms E’s opinion that in his mother's care the child has been and continues to be emotionally abused the consequences of which are grave, both in the short and long term.

19. The focus, therefore shifts to whether the child’s strong desire to live with his father is in his best interests.  Would the child be in a better situation if he lives with his father?  This involves an assessment of the risk to the child of sexual abuse or exposure to pornographic material if he lives with his father?  On this issue Ms E says:

    [The father] appears to have a much more stable lifestyle than [the mother].  He has a good work record and has had his current job for some years, achieving a promotion.  He is an emotionally stable person with good attachment capacity.  The sexual abuse of his step-daughter appears to be a 'one off' incident and several assessments since then have opined his risk of re-offending as being low.  [The mother], in her July 2007 affidavit, indicates he is sexually deviant and attracted to men and young boys (though she never alluded to this before and has not made these claims since.) There is no evidence to substantiate these claims and they appear to have been made at the time when [the mother] was highly acrimonious towards [the father]; was in the first flush of a new live-in relationship; and was wanting to sever meaningful contact between [the father] and [the child]. It is likely that the July 2007 claims made about [the father’s] sexual risks to [the child] are malicious.  In my opinion, despite [the father’s] convictions for child sexual assault, he presents a low risk for abuse of his son.  He does not meet the criteria for paedophilia, has no history of same-sex sexual attraction, and has attended numerous counselling sessions as recommended to work on the previous issues with his step-daughter.  As well, the sexual risk to [the child] is lowered by the biological connection between the two, [the child’s] male gender, the strong and appropriate attachment between them, and [the child’s] advanced age.  In my opinion, given this apparent low risk of sexual harm, [the father’s] superior mental capacity, and his good parenting capacity as compared to [the mother], that [the child] should primarily reside with his father.

20. The Court also received a report from Mr C.  Mr C is a Psychologist attached to the Men's Information Support Association Incorporated at P, near Brisbane.  Mr C conducted 25 counselling sessions with the father commencing 6 September 2006, with the most recent being 7 November 2007. Mr C concludes:

    In conclusion, my assessment of [the father] is that he is a generally good-hearted individual who has made some serious mistakes in his life, but without the intention of harm.  His concern for his son is very clear and would appear to be generally motivated by a desire to be with his son and provide him the best upbringing he can.  He has always been polite and cooperative in therapy sessions and has expressed a clear desire to improve his life and avoid repeating past mistakes.  On the basis of my assessment of [the father] and those of Dr [W], it is my opinion that [the father] does not suffer from any significant pathology.  First of all, although he has been convicted of indecent dealings with a minor, I have found no evidence to suggest that he poses any threat to children. He does not meet the criteria for paedophilia and available information suggests he does not have any deviant sexual impulses. [My emphasis] Based on the information provided, it would appear that his intention, in showing his step-daughter snippets of pornographic material, though obviously inappropriate, were not done with the intention of sexualising her or commencing the initial stages of grooming.  In light of the wife's obviously blatant sexuality and their previous discussions of getting his step-daughter a sex education tape, it is not difficult to believe that at that time, [the father] had not thought that showing the girl this material would be against her mother's wishes. With regard to the charge of inappropriate touching, it also seems likely that [the father] had not intended to touch his step-daughter.  The fact that her story kept changing regarding where he had supposedly touched her, her apparent willingness to tell all of her school friends about it, and the fact that she mentioned this the day after she had been angry with [the father] about her pocket money, suggests that the allegation was either fanciful or possibly an act of retaliation.  Although it is possible that [the father] deliberately touched the girl inappropriately, there is very little evidence to support that this was in fact his intention.  Given that he has no prior history of such behaviour nor any history of sexual deviance, it seems likely that he was not really guilty of attempting to touch the child inappropriately.  Finally, [the father] is clearly very motivated to make a better life for his son [the child].  He has made a number of life changes already and appears quite dedicated to the idea of caring for his son.  It is my opinion that [the father] would make a good father for his son and has the desire and inclination to put substantial effort into this.  If the description of his son's current home life is correct, then [the child] would certainly benefit from being removed from that environment to a more stable and caring one.

21. The only qualification I would make in accepting Mr C’s report is that it seems to me there is good reason to consider that the father's actions towards S were deliberate and their inappropriateness is manifest.  Yesterday the father attempted in my view, to minimise the reality of his offences towards S and I take the stronger view of his dealings with S outlined in Mr C’s report rather than the weaker one. 

22. It is important to understand that the Family Law Act 1975 proceedings require the Court to make orders which are in the child's best interests.  This does not mean the Court can always deliver good outcomes for children.  The reality is the Court makes decisions from time to time, which involves deciding between outcomes, neither of which suggests a good future for the child.  Regrettably, this is one of those situations.  Of the available options I accept that presently allowing the child to live with his father is the better, albeit not a good option.  At my request the Court provided copies of Ms E’s report to the Department of Child Safety and the Department of Community Services and invited their intervention in these proceedings.  Both Child Protection Departments have had significant involvement with each of the parties and children.  They both understand that it is likely the child will shortly live with his father and have not sought to intervene in these proceedings.  It appears their risk assessment if the outcome referred to is ordered, is consistent with the single expert’s and Mr C’s.

23. I am persuaded that I should make orders along the lines the parties have agreed.  In addition to the material I take into account in being satisfied that this is the best option, there are a number of other matters I wish to mention:

    a)Firstly, the child has completed two self-protective behaviour courses, one in Queensland and one in New South Wales, both under the auspices of the respective Child Protection Departments;

    b)The child is fully aware of S’s allegation;

    c)The child is fully aware his father was gaoled because of his sexual mistreatment of S;

    d)The Independent Children's Lawyer proposes in addition to the consent arrangement, a suite of protections along the lines recommended by the family consultant. These involve:

    ·informing the schools the child attends of his parents' history, and the risk assessment;

    ·establishing a mentor relationship for the child, so that the child has a reliable person beyond the family to whom he can turn if he is concerned about his father's treatment of him; and

    ·The Independent Children's Lawyer will remain in contact with the child’s mentor at least monthly over the next 12 months.

    e)The Court will remain involved for the next 12 months.

24. If I decline to make the agreed orders the child will live with his father anyway but with none of the protections the Independent Children's Lawyer’s suggested orders provide.  He is more at risk if I refuse to make the orders than if I do.  So that it is plain, the Court does not consider that this is a good outcome.  I will make mention of this in the orders.  I would not want agencies that may come into contact with the child in the future to consider that in the Court's view a good outcome has been provided for this boy.  In the event the child raises issues concerning his treatment by his mother or his father, I would want the orders to show that these should be treated seriously and no comfort should be taken from the fact that the child spends time with his mother, or lives with his father, by virtue of orders of this Court. 

25. For these reasons I make orders in accordance with the terms signed by the parties.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan

Associate:

Date:  5 November 2008