STANNIS & STANNIS

[2015] FamCA 354

FAMILY COURT OF AUSTRALIA

STANNIS & STANNIS [2015] FamCA 354

FAMILY LAW – PARENTING – Undefended proceedings where father does not participate in the proceedings – Where the father fails to attend the family consultant meeting – Where the father fails to attend a meeting with a psychiatrist – Where the father has been convicted of sexual offences involving other children – Where the father has had adequate notice of the orders sought by the mother – Where the mother and ICL seek an order that the mother have sole parental responsibility – Consideration of the best interests of the children.

Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) s 60CC, s 60B, s 61DA, s 65DAA

Briginshaw v Briginshaw (1938) 60 CLR 336
MRR v GR (2010) 263 ALR 368
M v M (1988) 166 CLR 69
N and S& the Separate Representative (1996) FLC 92-655
W and W (Abuse allegations: unacceptable risk) (2005) FLC 93-235

APPLICANT: Ms Stannis

RESPONDENT: Mr Stannis

INDEPENDENT CHILDREN’S LAWYER: David Stagg Tonkin & Co

FILE NUMBER: DGC 2274 of 2009

DATE DELIVERED: 14 May 2015

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Stevenson J

HEARING DATE: 11 May 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Lethlean

SOLICITOR FOR THE APPLICANT: Perry Weston Lawyers

THE RESPONDENT: No Appearance

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Marchetti

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: David Stagg Tonkin & Co

Orders

1. That all previous orders with respect to the children B born … 2008, C born … 2008 and D born … 2011 (“the children”) be discharged.

2. That the mother have sole parental responsibility for the children.

3. That the children spend no time or communicate with their father.

4. That the mother be at liberty to provide a copy of these Orders and the reasons for judgment to the children’s school.

5. That all extant applications be otherwise dismissed.

6. That the appointment of the Independent Children's Lawyer be discharged.

7. 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 the 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.

8. The exhibits may be returned upon the usual undertakings.

9. All material produced in response to subpoenas is to be returned to the party who produced it.

10. The matter is removed for the list of Active Pending Cases.

AND THE COURT NOTES

A.That each of the DHS and Dr E reports filed within these proceedings suggest that “there appears to be a significant risk” of serious offending behaviours with respect to the father.

B.That the father did not participate in the assessment and theraputic intervention with Dr F as ordered; did not participate in the Family Report assessement; and did not attend this day despite notice dated 29 April 2015 by the Independent Children's Lawyer (exhibit 1).

C.That the father on 11 February 2013 was convicted of Make/Produce Child Pornography; Possess Child Pornography; and use Optical Surveillance Device. The father was placed on the Sex Offenders Register for life as a part of his conviction.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Stannis & Stannis has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: DGC 2274 of 2009

Ms Stannis

Applicant

And

Mr Stannis

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

The proceedings

1. Mr Stannis (“the father”) and Mrs Ms Stannis (“the mother”) are the parents of  three children:

   B born in 2008 (7);

   C born in 2008 (7); and

   D born in 2011 (4).

   These proceedings concern parenting orders and, in particular, what time if any the children should spend with the father.

2. The proceedings commenced with the mother’s initiating application filed on 28 July 2014.  The mother sought the following final orders:

   1.That the mother have sole parental responsibility for the children [B] born … 2008, [C] born … 2008 and [D] born … 2011 (“the children”).

   2.That the children live with the mother.

   3.That the children spend time and communicate with the father as agreed between the parties.

   4.Such further or other orders as this Honourable Court deems appropriate.

3. Simultaneously with her Initiating Application the mother filed a Notice of Child Abuse, Family Violence or Risk of Family Violence.  Inter alia, this Notice contained the following statements and allegations:

   1.The father was convicted in 2013 at the [Suburb G] Magistrates’ Court of child pornography charges in relation to my two daughters of a previous relationship namely Ms H born … 1995 aged 19 years (“[Ms H]”) and J born … aged 16 years (“J”).

   2.The father was sentenced to 200 hours community service, a fine and was placed on the Sex Offenders Register for life. 

   3.The charges related to photographs that were taken by the father of the two girls and other child pornography that were in his possession.

   4.In 2010 I was contacted by the police and advised that it had come to their attention that the father had sent a photo of his penis to [Ms H].

   5.The police then conducted a search of the father’s residence and found a large number of photos of the girls that were taken over a period of approximately nine years prior to 2010.

   6.The photos showed the girls in various states of undress.

   7.Further investigations conducted by the police reveal that the father had purchased a furry Elmo toy and installed a video camera in his house to secretly film our family.

4. On 10 September 2014 the father filed a Response to Initiating Application.  He sought orders to the effect that the mother have sole parental responsibility; that the children live with the mother and spend time with him on a gradually increasing basis, under the supervision of the paternal grandmother Ms I Stannis. 

5. On 25 February 2015 I made directions for the preparation of the proceedings for final hearing.  Inter alia, I ordered that the father attend upon psychiatrists Dr E and Dr F for the purpose of preparation of expert reports.  I directed that the parties file and serve trial affidavits by 25 April 2015 and ordered the preparation of a family report. 

6. The father attended an appointment with Dr E, who prepared a report dated 27 January 2015.  The father failed to attend appointments with Dr F and the family consultant.  The father failed to file any affidavit of evidence in chief for the trial, which was listed for four days to commence on 11 May 2015.  The father was legally represented on 25 February 2015. 

7. On 11 May 2015 there was no appearance of or on behalf of the father.  Counsel for the Independent Children’s Lawyer (“the ICL”) submitted a minute of proposed orders, which contained a number of notations.  This document read as follows:

   A.That each of the DHS and Dr E reports filed within these proceedings suggest that “there appears to be a significant risk” of serious offending behaviours with respect to the father.

   B.That the father did not participate in the assessment and theraputic intervention with [Dr F] as ordered; did not participate in the Family Report assessement; and did not attend this day despite notice dated 29 April 2015 by the Independent Children's Lawyer (exhibit 1).

   C.That the father on 11 February 2013 was convicted of Make/Produce Child Pornography; Possess Child Pornography; and use Optical Surveylance Device. The father was placed on the Sex Offenders Register for life as a part of his conviction.

8. The father’s solicitor filed a Notice of Ceasing to Act on 25 March 2015.  On 28 April 2015 the ICL wrote to the father, advising that he considered it likely that the mother would seek to proceed with the hearing on an undefended basis on 11 May 2015.  The ICL enclosed a copy of the family report with this letter (Exhibit 1).

9. On 11 May 2015, counsel for the mother indicated that she consented to the orders proposed by the ICL.  I was satisfied that the father had been provided with notice that orders of a similar nature were likely to be made on an undefended basis.

10. It is true that the mother’s Initiating Application contemplated an order that the children spend time and communicate with the father as agreed between the parties.  The mother’s Amended Initiating Application filed on 12 August 2014, however, contained no provision for the children to spend time or communicate with the father.  In these circumstances, I considered that the father had been afforded reasonable notice that the mother’s position was that there should be no order which provided for the children to spend time or communicate with him.

11. For reasons which appear below, I was satisfied that the orders proposed by the ICL and to which the mother consented were in the best interests of the children.  Accordingly I made orders in the terms proposed by the ICL and now furnish my reasons.

Background

1. The father was born in 1971 and is currently 43 years of age.  The mother was born in 1976 and is presently 38 years old.  The parties began to live together in 2005 and married in 2007.  They were divorced on 3 October 2009 but apparently attempted reconciliation until 2010. 

2. The mother has two children from a previous relationship:

   Ms H born in 1995 (20) and;

   J born in 1998 (17).

3. In 2013 the father was convicted of several offences involving child pornography which were related to the mother’s daughters.  It appears that he sent photos of his genitalia to the mother’s daughter Ms H.  Further, he secretly took photos of Ms H and J in various states of undress over a period of several years.  He also installed a covert video camera and secretly videoed the entire family within their home.

4. The father was sentenced to 200 hours community service, fined and placed on the Sex Offenders Register for life.  He has not seen the children the subject of these proceedings since either 2011 or his arrest in 2012.

Approach To These Proceedings

1. In making a parenting order, the court is governed by a determination of what arrangements are in the best interests of the child who is the subject of the proceedings.  Part VII of the Family Law Act 1975 (Cth) (“Act”) sets out a number of mandatory considerations which prescribe the pathway to that decision. Section 60CC sets out “primary” and “additional” considerations, to which the court must have regard in determining what orders are in a child’s best interests. 

2. The court must have regard to the objects of Part VII, as contained in s 60B(1) and the principles underlying those objects, as set out in s 60B(2).  Section 60B(3) makes particular provision for the right of an Aboriginal or Torres Strait Islander child to enjoy his or her culture.

3. Section 61DA requires the court to apply a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility.  This presumption does not apply if there are reasonable grounds for the court to believe that a parent (or a person who lives with a parent) has engaged in abuse of the child (or another child who was a member of the parent’s household) or family violence.  The presumption may be rebutted by evidence which satisfies the court that it would not be in a child’s best interests for his or her parents to have equal shared parental responsibility.

4. If a parenting order provides for equal shared parental responsibility the court must consider whether it is in the child’s best interests, and reasonably practicable, for him or her to spend equal time with each parent (s 65DAA(1)).  If there is no order for equal time, the court must consider whether it is in the child’s best interests, and reasonably practicable, for him or her to spend “substantial and significant” time with each parent.  The concepts of “substantial and significant time” and “reasonable practicability” are defined in s 65DAA(3),(4) and (5).  There is no temporal definition of “substantial and significant time”. 

5. In MRR v GR (2010) 263 ALR 368 the High Court of Australia said:

   8. Subsection (1) of s 65DAA is headed “Equal time” and provides:

   If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:

   (a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and

   (b) consider whether the child spending equal time with each of the parents is reasonably practicable; and

   (c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.

   Subsection (2) makes provision for where a parenting order provides that a child’s parents are to have equal shared parental responsibility for the child (para (a)) but the court does not make an order for the child to spend equal time with each of the parents (para (b)). In such a circumstance the court is obliged to:

   (c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and

   (d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and

   (e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.

   Subsection (3) explains what is meant by the phrase “substantial and significant time”.

   9. Each of subss (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. Subsection (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 subss (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”…

   13. 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 (para (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (para (b)). It is only where both questions are answered in the affirmative that consideration may be given, under para (c), to the making of an order. The words with which para (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. If such a finding cannot be made, subss (2)(a) and (b) require that the prospect of the child spending substantial and significant time with each parent then be considered. That subsection follows the same structure as subs (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.”…

   15. 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.…

6. A leading decision on the approach of the court to allegations of sexual abuse of children is that of the High Court of Australia in M v M (1988) 166 CLR 69 (“M v M”). Their Honours said (at page 76):

   …the resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the court’s determination of what is in the best interests of the child.  The Family Court’s consideration of the paramount issue which it is enjoined to decide cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse…

   and at page 75:

   …the ultimate and paramount issue to be decided in proceedings for custody of, or access to, a child is whether the making of the order sought is in the interests of the welfare of the child.  The fact that the proceedings involve an allegation that the child has been sexually abused by the parent who seeks custody or access does not alter the paramount and ultimate issue which the court has to determine, though the court’s findings on the disputed allegation of sexual abuse will naturally have an important, perhaps a decisive, impact on the resolution of that issue.

7. In M v M (at pp 76-77) the High Court identified the relevant standard of proof in these terms:

   In considering an allegation of sexual abuse, the court should not make a positive finding that the allegation is true unless the court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v Briginshaw (1938) 60 CLR 336 at p.362. There Dixon J said:

   ‘The seriousness of an allegation made, the inherent likelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal.  In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences.’

8. The “Briginshaw test” is now encapsulated in s 140 of the Evidence Act1995 (Cth), which provides:

   140(1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.

   (2)Without limiting the matters which a court may take into account in deciding whether it is so satisfied, it is to take into account:

   (a)    the nature of the cause of action or defence; and

   (b)    the nature of the subject-matter of the proceeding; and

   (c)    the gravity of the matters alleged.

9. The High Court in M v M addressed the issue of “unacceptable risk” of sexual abuse and said (at page 77):

   In resolving the wider issue the court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assess the magnitude of that risk.  After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child’s welfare.  The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access.  In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access.

1. In W and W (Abuse allegations: unacceptable risk) (2005) FLC 93-235 (“W and W”) the Full Court (Warnick, May and Boland JJ) discussed the “the unacceptable risk test”, and said:

   111.  In summary, the law is well settled as to the standard of proof required to make a positive finding of sexual abuse, and that such a finding should not be made unless a trial Judge is satisfied to the highest standard, on the balance of probabilities abuse has occurred.  We accept, as a matter of practice, a trial Judge will almost inevitably be required in a case where sexual abuse allegations are raised to consider whether abuse has been proven on the balance of probabilities as well as considering whether or not an unacceptable risk of abuse exists.  The High Court in M and M recognised the difficulty in defining with any degree of precision what constitutes an ‘unacceptable risk’ and the cases determined after that decision testify to the difficulty.  However, the questions posed by Fogarty J in N and S, and referred to by us in paragraph 105, do provide a structure or framework which may assist a trial Judge to assess future risks to a child.

2. The Full Court in W and W cited with approval the following passage from the judgment of Fogarty J in N and S & the Separate Representative (1996) FLC 92-655:

   In asking whether the facts of the case do establish an unacceptable risk the Court will often be required to ask such questions as:  What is the nature of the events alleged to have taken place?  Who has made the allegations?  To whom have the allegations been made?  What level of detail do they involve?  Over what period of time have the allegations been made?  Over what period of time are the events alleged to have occurred?  What are the effects exhibited by the child?  What is the basis of the allegations?  Are the allegations reasonably based?  Are the allegations genuinely believed by the person making them? What expert evidence has been provided?  Are there satisfactory explanations of the allegations apart from sexual abuse?  What are the likely future effects on the child? 

   I would respectfully observe that this series of questions is a useful, practical tool for a court to utilise in assessing whether there exists an “unacceptable risk” of sexual abuse of a child.

Consideration

1. The children have had no interaction or contact with the father for a minimum period of three years.  D was only approximately only 12 months of age when he last saw the father.  The twins have special needs, in that they suffer from high functioning autism and severe incontinence.  It is unlikely that the father has any current knowledge or understanding of these special needs.  In these circumstances, it seems to me that it would not be in the children’s best interests for the parties to have equal shared parental responsibility.

2. Additionally, it is clear that the father engaged in abuse of the mother’s daughters Ms H and J who were members of his household at relevant times.  In these circumstances I am comfortably satisfied that the presumption of equal shared parental responsibility has been rebutted by evidence of the father’s abuse of the mother’s daughters.

3. Accordingly, I am not required to consider whether it is in the children’s best interests, and reasonably practicable, that they spend equal or substantial and significant time with each parent. I am at liberty to determine what parenting orders are in their best interests by reference to the considerations set out in s 60CC of the Act.

4. The evidence gave rise to real concerns that the children require protection from physical or psychological harm in the unsupervised care of the father.  This risk is compounded by the reality of the twins’ special needs.  The mother’s uncontradicted evidence was that they require assistance with changing their sanitary pads and toileting generally on an average of four occasions per day. 

5. Dr E offered this diagnosis in relation to the father:

   [Mr Stannis] appears to have suffered from a paraphilic disorder, which has been characterised by sexual desires and behaviours involving adolescents unable to give legal consent.

   Paedophilic disorder is one of the group of paraphilic disorders and is characterised by fantasies, urges or behaviours in relation to prepubescent children.  Therefore, upon the history available, it is possible that from a formal psychiatric diagnostic perspective, a more specific diagnosis in [Mr Stannis’s] case would be unspecified paraphilic disorder.  The distinction is somewhat academic and it appears relevant that [Mr Stannis’s] past behaviours have involved minors in his care.

6. Dr E offered the following prognosis in relation to the father:

   Upon the history available, and taking into account [Mr Stannis’s] varying degrees of denial, minimisation and lies, there appears to be a significant risk of future regression into serious offending behaviours, in the absence of robust, expert and targeted psychiatric treatment.  Such treatment is available through targeted programs, such as the Problem Behaviour Program at the Community Forensic Mental Health Service section of Forensicare.

   This examiner is not a specialist forensic psychiatrist and is unable to comment upon the likely outcome of any involvement that [Mr Stannis] might have with such a program.  However, it is apparent that there is some poor prognostic indicators, in terms of [Mr Stannis’s] apparent lack of insight and motivation.  He did not present as someone who was being significantly distressed and remorseful about his behaviours.  

7. Notably, included in the enclosures to the ICL’s letter of 28 April 2015 to the father was a communication with an official of the Forensicare organisation.  This letter confirmed that the father was at liberty to self-refer to that service.  Evidently, the father chose not to pursue this option.

8. Dr E offered the following conclusions in relation to the father:

   There would appear to be significant concerns regarding [Mr Stannis’s] ability to provide safe parenting without a relapse into previous abnormal sexual behaviours, notwithstanding that his previous behaviours involved adolescent girls whereas he has three young sons.

   As described above, whilst this examiner is not a forensic psychiatrist with specific expertise in sexual disorders, there appears to be little doubt that [Mr Stannis] is in need of further treatment for him to be not regarded as a risk if spending unsupervised time with children.

9. During his interview with Dr E the father “acknowledged a previous history of heavy marijuana use”.  The father annexed to his affidavit of 18 February 2015 two urinalysis certificates dated 7 November 2014 and 13 December 2014, both of which showed the presence of cannabis metabolites. 

10. Although the family consultant did not observe the children with the father, she offered these predications as to the present state of their relationship:

    …it appears from both parents’ reports that the children have not spent time with [Mr Stannis] for over three years.  [Ms Stannis] further reported that she does not instigate conversations with the children about [Mr Stannis], and she believes that the children have either limited or no memories of him.  It is possible that an observation of the children interacting with [Mr Stannis] would not provide a straightforward illustration of their abilities to develop meaningful relationships with him.  From the twins’ behaviour at interview it appears possible that they might choose not to interact with their father at observation unless bribed to do so.  It is also possible that they may experience difficulty understanding that [Mr Stannis] is a family member as he has not observably been part of their family for a number of years.  Introducing [Mr Stannis] to the children while there is still a question as to whether he will have an ongoing role in their lives may have more harmful than beneficial effects on the children.

11. The mother has been the children’s primary carer throughout their lives.  She is accustomed to meeting the special needs of the twins, as to which the father might reasonably be expected to have little knowledge.  The same observation can be made in relation to the father’s proposed supervisor, the paternal grandmother.

12. The family consultant opined that the mother manages the twins’ special needs effectively.  She offered these opinions:

    At interview [Ms Stannis] expressed the view that the risks associated with [Mr Stannis’s] history of offending behaviour and the subsequent assessment of his potential to reoffend, in combination with the children’s vulnerabilities due to their diagnoses of Autism Spectrum Disorder (ASD) place the children at a heightened risk of sexual abuse in his care.  [Ms Stannis] also raised concerns about [Ms I Stannis’s] inability to behave protectively of the children or prioritise the children’s needs over those of [Mr Stannis].  [Ms Stannis’s] views appeared to reflect an ability to identify the children’s needs and a willingness to incorporate professional advice into her decision-making process.    

13. There was no evidence from the paternal grandmother in relation to her potential to fulfil the role of supervisor or any other issue in the proceedings.  There was some suggestion in the material before me that she has suffered from three strokes but there was no evidence as to her current medical condition.

Conclusion

1. I am satisfied and find, on the balance of probabilities that the children would be exposed to an unacceptable risk in the unsupervised care of the father.  There was no evidence as to the availability of any appropriate supervisor.  In these circumstances, I concluded that the orders proposed by the ICL and consented to by the mother would be in the best interests of the children.

I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson delivered on 14 May 2015.

Associate: 

Date:  14 May 2015