VASARI & SULLIVAN
[2015] FamCA 902
•21 October 2015
FAMILY COURT OF AUSTRALIA
| VASARI & SULLIVAN | [2015] FamCA 902 |
| FAMILY LAW – CHILDREN – child to live with the mother – sole parental responsibility – father to spend supervised time only – where the father pleaded guilty to indecent dealing of a child under 16 – where the father’s parole conditions precludes contact with children – where the father seeks the child to live with him at the conclusion of his parole. |
| Family Law Act 1975 (Cth) s 60B s 60CA s 60CC s 61DA s 61DAAs 61DAC s 69ZX Evidence Act 1999 (Cth) s 140 Penalties and Sentences Act 1992 (Qld) s 92 |
| Banks & Banks [2015] FamCAFC 36 |
| B Mahendra “Psychiatric Risk Assessment in Family and Child Law” (2008) 38 Family Law 569 |
| APPLICANT: | Ms Vasari |
| RESPONDENT: | Mr Sullivan |
| INDEPENDENT CHILDREN’S LAWYER: | Mr Purcell |
| FILE NUMBER: | TVC | 657 | of | 2013 |
| DATE DELIVERED: | 21 October 2015 |
| PLACE DELIVERED: | Townsville |
| PLACE HEARD: | C Town |
| JUDGMENT OF: | Tree J |
| HEARING DATE: | 24 August 2015 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Byrne |
| SOLICITORS FOR THE APPLICANT: | C Town Family Law |
| THE RESPONDENT: | In Person |
| COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER : | Mr Fellows |
| SOLICITORS FOR THE INDEPENDENT CHILDREN'S LAWYER: | Purcell Taylor Solicitors |
Orders
The child, B, born … 20013 live with the mother.
The father spend time and communicate with the child at all times as can be agreed between the parties, but failing agreement as follows:
(a)Supervised contact to occur at the C Town Children’s Contact Centre Service at times and on dates nominated by the Centre for a minimum of two (2) hours per month with a minimum of one (1) months notice to the mother;
(b)Telephone contact to occur every Sunday evening between the hours of 7:00pm and 7:30pm, with the father to initiate the telephone call.
Save as provided for in order 4, the mother have sole parental responsibility in relation to major long term issues affecting the child, but will keep the father informed as to issues including:
(a)Education;
(b)Health;
(c)Any changes to the child’s living arrangements which make it significantly more difficult for the child to spend time with the father.
The mother is hereby restrained from:
(a)Changing the child’s religion;
(b)Changing the names by which the child is ordinarily known.
The mother shall keep the father informed of and shall properly inform the father with respect to any significant parenting issues affecting the child. For the purposes of this order, a “parenting issue” is:
(a)Any medical or health matter concerning the child;
(b)Any medical or health matter affecting either parent which may affect the ability of that parent to care for the child;
(c)Matters relating to the education of the child, including but not limited to, the choice of school and curriculum and the provision to the other parent of all school reports, option to purchase school photographs and all communication from the child’s school other than with respect to routine or administrative matters;
(d)Matters concerning the social development and sporting activities of the child;
(e)Any change of place of domicile or telephone number of the mother, within twenty-four (24) hours of such change; and
(f)Generally, any matter regarding the child in respect of which a parent should be informed of or consulted with having regard to the provisions of the Family Law Act 1975.
This order shall be sufficient authority for all schools, medical practitioners, general and special dentists and other professional persons dealing with the child to provide to the parents any and all information, including but not limited to school reports, newsletters, school photographs, order forms sought by them and after their request and at their individual expense, if any.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Vasari & Sullivan 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 C TOWN |
FILE NUMBER: TVC657/2013
| Ms Vasari |
Applicant
And
| Mr Sullivan |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
By her Amended Initiating Application filed 25 September 2014, Ms Vasari (“the mother”) seeks orders that the parties’ child B, born in 2003 and hence presently 12 years of age (“the child”) live with her, and that she have sole parental responsibility for her. She also proposes that the child spend supervised time at the C Town Contact Centre with Mr Sullivan (“the father”) for a minimum of two hours per month, and have telephone contact with him every Sunday evening for 30 minutes. The mother justifies these orders on the grounds that the father presents an unacceptable risk of sexual harm to the child.
By his Response to Initiating Application filed 11 November 2014, the father seeks orders that the child live with the mother until May 2016, at which time she would then move to live with him and spend school holiday time with the mother. Alternatively, in the event that the court does not order that the child then live with him, the father seeks orders that after May 2016 the child spend all school holidays with him with the exception of Christmas, when she would spend two weeks of holiday time with him. On either scenario he also seeks orders for equal shared parental responsibility and for reasonable telephone communication.
Although not contained within his Response, at hearing the father also sought orders to the effect that until May 2016, any supervised time that he spent with the child should not be at the C Town Contact Centre, but should be supervised by a friend, one Ms D, seemingly at Ms D’s house.
The Independent Children's Lawyer in substance supported the orders sought by the mother, but expressly contemplated that after May 2016, those orders may need to be revisited depending upon the circumstances that then prevailed.
BACKGROUND FACTS
The father
The father was born in 1961 and hence is presently 53 years of age. He was born and raised in South Australia and completed his schooling at year 11. Thereafter he has worked in a variety of occupations, most recently (and continuing) as a retail assistant . It is unclear whether, before his relationship with the mother, he had been in any previous relationships, but certainly he has no other children. He was 40 years of age and living (it seems) in E Town in South East Queensland when he met the mother in 2002.
The mother
The mother was born in F Town on in 1977, and hence is presently 37 years of age. She was raised by her mother and step father, and only met her biological father when she was an adult. She left school part way through year 11. In 1999 she gave birth to a daughter, G, to a partner with whom she was then in a relationship. The mother was 24 years of age when she met the father in 2002 and commenced cohabiting with him.
The relationship
The mother rapidly fell pregnant with the child. The pregnancy apparently created some tension in the relationship, and the mother determined that she wanted out of it. I know little about the course of the relationship or why it ultimately failed, but it is agreed that the parties finally separated in 2007, when the child was about four years old.
Post-separation
After separation both parties continued to live in the E Town area and shared the care of the child on the basis that she spent four nights with the father and three nights with the mother in any week. This apparently worked well.
In 2009 the mother met and formed a relationship with a man living near C Town. She relocated there. The child stayed living with the father, but spent school holiday time with the mother. The mother’s other daughter, G, moved to C Town with her. Further, her new partner had a daughter, H, from a previous relationship, although I know little of her save that she was then aged 7 or 8. Particularly it is unclear whether at the time, or indeed thereafter, she lived in her father’s household or not.
As one would expect, the child maintained friendships in the E Town area where, save for the school holiday time she spent with her mother, she lived, went to school and went to church.
In 2011 the home in which the father and the child were then living was flooded and condemned, in consequence of which he had to move house. It appears as though this whole episode was very distressing for the father.
On 5 September 2012 the mother gave birth to a daughter, J. J’s father is the mother’s partner, being H’s father.
On a date which the evidence does not enable me to determine with precision save to say that it appears to be earlier than October 2012, an incident occurred when a friend of the child’s was sleeping over at the father’s house. I will discuss the father’s evidence in relation to that in due course, but suffice to say for present purposes that in May 2013 he was charged with two counts of indecent dealing with a child under 12. That dealing was said to comprise touching the child’s vagina through her clothing whilst he was sleeping next to her in a sleeping bag on the floor. Initially the father vehemently denied having committed any such offence.
Although the Department of Communities, Child Safety and Disability Services (“DoCS”) did not themselves remove the child from the father’s care in consequence of the charges, they arranged with the mother that she would keep the child and not return her to the father when she came for her next school holidays in July, and that occurred. Needless to say that greatly upset the father.
The mother commenced these proceeding on 17 July 2013 seeking orders that the child live with her and spend supervised time with the father. The father’s initial position was that the previous arrangements, whereby the child lived with him and spent school holiday time with the mother, should be maintained.
Ultimately on 9 September 2013 Judge Coker in the Federal Circuit Court made interim orders by consent that the child live with the mother and spend supervised time with the father at the C Town Contact Centre. There were also orders permitting the father to have telephone contact with the child each week.
Despite the father’s initial vehement denials of any wrong doing, he ultimately pleaded guilty to the two charges, and was sentenced to four months imprisonment followed by two years of probation. He served that time between 13 January 2014 and 12 May 2014. When he was released, it was on the probation order which applied until May 2016. A condition of that probation order – which he signed – is that he is “directed to not have any unsupervised access or contact with any children under the age of 16 years.”
After his release from prison, the father has spent two occasions of supervised time with the child at the C Town Contact Centre. He says his limited financial circumstances have thereafter precluded him from being able to travel to C Town to see and spend time with the child.
THE ISSUES
The following are the matters which stand to substantially determine these proceedings:
1.What is the nature of the child’s relationship with the father;
2.What is the nature of the child’s relationship with the mother and others in her household;
3.Is the father an unacceptable risk of harm to the child, and particularly does the father’s proposed regime of supervision render any risk acceptable;
4.Should the court make orders to operate from the time the father ceases to be on parole;
5.Could the parties exercise shared parental responsibility.
After I have discussed relevant statutory provisions and legal principles, I will consider those issues in advance of a general consideration of the s 60CC considerations, and then turn to the specific parenting orders that are in the best interests of the child in this case.
RELEVANT STATUTORY PROVISIONS AND LEGAL PRINCIPLES
The statutory regime
Part VII of the Family Law Act contains the relevant statutory provisions dealing with children. Section 60B specifies the objects of Part VII, and the principles underlying those objects in the following terms:
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 61DA(1) of the Family Law Act provides that the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. In the event that, either because that presumption applies, or because it is otherwise in the child’s best interests that there be an order providing for equal shared parental responsibility, the court is obliged pursuant to s 65DAA(1) to then consider certain matters, including whether the child should spend equal time with each of the parents, or substantial and significant time.
However s 61DA(2) provides that the presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in either abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family) or family violence. Further, subsection 61DA(4) provides that the presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for its parents to have equal shared parental responsibility.
In this context it is convenient to also advert to s 65DAC, which sets out the effect of a parenting order that provides for shared parental responsibility. By subsection (3) such an order is taken to require each of the persons subject to it to consult with the other person in relation to the decision to be made about any major long-term issue in relation to the child, and make a genuine effort to come to a joint decision about that issue. It can therefore be seen that the obligations which an order effecting equal shared parental responsibility imposes are potentially onerous.
Finally s 60CA provides that in deciding whether to make a particular parenting order, the court must regard the best interests of the child as the paramount consideration. The matters which a court must have regard to in determining the best interests of a child are set out in s 60CC. Consideration does not mean discussion: Banks & Banks [2015] FamCA 36 at [49].[1]
[1]Albeit decided in the context of interim parenting orders, there seems no reason in principle why any different conclusion would apply in final orders.
In Mauldera & Orbel (2014) FLC 93-602 the Full Court had occasion to consider the interrelationship between s 60B and ss 60CC. At [72] the Court applied the principles enunciated in Wacando v The Commonwealth (1981) 148 CLR 1 in concluding that objects clauses, such as those contained within s 60B(1) can be used as an aid to the construction of words of legislation, but cannot be used to cut down the plain and unambiguous meaning of a provision if that meaning in its textual and contextual surroundings is clear (quoting from S v Australian Crime Commission (2005) 144 FCR 431 at [22] per Mansfield J). At [79] the Court concluded that the primary Judge could not attach greater weight to the factors referred to in s 60B than to the outcome of her s 60CC deliberations, and in doing so, her Honour had erred.
The standard of satisfaction required
S 140 of the Evidence Act 1999 (Cth) provides as follows:
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 that the 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;
(b) the nature of the subject-matter of the proceedings;
(c) the gravity of the matters alleged.
In Neat Holdings Pty Ltd v Karajan & Holdings Pty Ltd (1992) 67 ALJR 170 at 170-171 the majority of the High Court stated:
The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. On the other hand the strength of the evidence necessary to establish a fact or fact on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary “where so serious a matter as fraud is to be found”. Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a Court should not likely make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct.
Plainly child sexual assault is a grave crime. Further, the consequences attaching to a finding of the kind sought by the mother could potentially be grave. As is demonstrated by this case itself, based upon such a fact being established, a parent could seek to use it to found an argument that the other parent’s time with the child should either be supervised for some period of time, or even permanently.
Therefore consistent with s 140(2), in taking into account the gravity of the parties’ allegations against each other, I propose to carefully evaluate the evidence relied upon in support of such a contended finding and be particularly vigilant to identify and place reduced weight upon “inexact proofs, indefinite testimony or indirect inferences.”[2]
[2] See K v R (1997) 22 FamLR 592 and Re W (sex abuse – standard of proof) [2004] FamCA 768 at [15].
The notion of unacceptable risk
It is useful to consider the authorities which give some guidance as to what is an unacceptable risk, and particularly the relationship of any such risk with the orders that the Court is contemplating. A useful starting point is the decision of the Full Court in N & S & The Separate Representative (1996) FLC 92-655, where in the well-known passage at 82,713-4, Fogarty J said:
Thus, the essential importance of the unacceptable risk question as I see it is in its direction to Judges to give real and substantial consideration to the facts of the case, and to decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm to the child. Thus, the value of the expression is not in a magical provision of an appropriate standard, but in its direction to Judges to consider deeply where the facts of a particular case fall, and explain adequately their findings in this regard.
In M v M (1988) 166 CLR 69, the High Court had occasion to consider the approach in Family Court proceedings where there are allegations of sexual abuse of a child. At [20]-[25] the Court said as follows:
20. But it is a mistake to think that the Family Court is under the same duty to resolve in a definitive way the disputed allegation of sexual abuse as a court exercising criminal jurisdiction would be if it were trying the party for a criminal offence. Proceedings for custody or access are not disputes inter parties in the ordinary sense of that expression: Reynolds v Reynolds (1973) 47 ALJR 499; 1 ALR 318; McKee v McKee (1951) AC 352, at pp 364-365. In proceedings of that kind the court is not enforcing a parental right of custody or right to access. The court is concerned to make such an order for custody or access which will in the opinion of the court best promote and protect the interests of the child. In deciding what order it should make the court will give very great weight to the importance of maintaining parental ties, not so much because parents have a right to custody or access, but because it is prima facie in a child's interests to maintain the filial relationship with both parents: cf. J. v Lieschke [1987] HCA 4; (1987) 162 CLR 447, at pp 450, 458, 462, 463-464.
21. Viewed in this setting, 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. The Family Court's wide-ranging discretion to decide what is in the child's best interests cannot be qualified by requiring the court to try the case as if it were no more than a contest between the parents to be decided solely by reference to the acceptance or rejection of the allegation of sexual abuse on the balance of probabilities.
22. In considering an allegation of sexual abuse, the court should not make a positive finding that the allegation is true unless the court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336, at p 362. There Dixon J. said:
"The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters 'reasonable satisfaction' should not be produced by inexact proofs, indefinite testimony,
or indirect inferences."His Honour's remarks have a direct application to an allegation that a parent has sexually abused a child, an allegation which is often easy to make, but difficult to refute. It does not follow that if an allegation of sexual abuse has not been made out, according to the civil onus as stated in Briginshaw, that conclusion determines the wider issue which confronts the court when it is called upon to decide what is in the best interests of the child.
23. No doubt there will be some cases in which the court is able to come to a positive finding that the allegation is well-founded. In all but the most extraordinary cases, that finding will have a decisive impact on the order to be made respecting custody and access. There will be cases also in which the court has no hesitation in rejecting the allegation as groundless. Again, in the nature of things there will be very many cases, such as the present case, in which the court cannot confidently make a finding that sexual abuse has taken place. And there are strong practical family reasons why the court should refrain from making a positive finding that sexual abuse has actually taken place unless it is impelled by the particular circumstances of the case to do so.
24. In resolving the wider issue the court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assessing the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child's welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access. In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access. Even in such a case, however, there may be a risk of disturbance to a child who is compulsorily brought into contact with a parent who has sexually abused her or whom the child believes to have sexually abused her. But that is not the issue in this case.
25. Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. The degree of risk has been described as a "risk of serious harm" (A v A [1976] VicRp 24; (1976) VR 298, at p 300), "an element of risk" or "an appreciable risk" (Marriage of M (1987) 11 Fam LR 765, at p 770 and p 771 respectively), "a real possibility" (B. v. B. (Access) (1986) FLC 91-758, at p 75,545), a "real risk" (Leveque v Leveque (1983) 54 B CLR 164, at p 167), and an "unacceptable risk" (In re G. (a minor) (1987) 1 WLR 1461, at p 1469). This imposing array indicates that the courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child's paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.
In Harridge & Harridge [2010] FamCA 445 Murphy J, having referred to N & S & The Separate Representative (supra), proceeded to adopt the following list of inquiries in relation to risk assessment:[3]
(1) What harmful outcome is potentially present in this situation?
(2) What is the probability of this outcome coming about?
(3) What risks are probable in this situation in the short, medium and long term?
(4) What are the factors that could increase or decrease the risk that is probable?
(5) What measures are available whose deployment could mitigate the risks that are probable?
[3] Taken from B Mahendra “Psychiatric Risk Assessment in Family and Child Law” (2008) 38 Family Law 569.
I gratefully adopt that passage as helpful in cases such as these in analysing the asserted risk.
WHAT IS THE NATURE OF CHILD’S RELATIONSHIP WITH FATHER
A Family Report was prepared in this matter on 12 September 2014. In the course of that the child was interviewed by the Report writer, Ms I. The child told her she understood the reason why she is now living with her mother, and that it had been explained to her in counselling which she had (seemingly) attended with her mother. During the course of the evidence before me it became plain that to the extent that the child knows anything of the circumstances behind the father’s conviction, it does not extend to specific knowledge of what he did or the identity of the victim.
In her affidavit filed 24 February 2015, the mother deposed to the fact that the child continues to have telephone contact with the father every Sunday, and that she seems to enjoy this. Further she deposed, in relation to the two occasions in both October and December when the child spent time with her father at the C Town Contact Centre, that the child did not offer any comments about the visits, and the mother did not ask her about them.
In the father’s affidavit filed 13 May 2015 he deposed to the very close relationship which he had to the child prior to his incarceration, and that subsequently the child has told him that she is interested in going back into his care. I accept that evidence.
Unfortunately no direct observation of the father and the child was made during the course of the Family Report interviews, nor do I have any Contact Centre reports. The reason why the father was not observed interacting with the child in the Family Report interviews, was because in the course of Ms I negotiating with the father to conduct interviews, he became upset and extremely argumentative. He demanded that he spent time with the child during the report interviews, but when the report writer refused to give any such guarantee, the father said “I will take my daughter and kill anyone who tries to stop me.” Unsurprisingly, as a result of that the Family Report writer did not conduct an observation of the father and the child.
Notwithstanding the limitations which the evidence therefore imposes, I am satisfied that the father and child have a good relationship. Moreover, it appears to be probably the most significant relationship in the father’s life. For instance he told the Family Report writer that he was badly missing the child, and was disappointed that he could not get to see her.
CHILD’S RELATIONSHIP WITH MOTHER AND HOUSEHOLD
Obviously the mother’s relocation to C Town in 2009 would have been a traumatic event for the child. That was because not only did the mother move to C Town, but also the child’s older sister G relocated as well. The mother appears to concede this because in her trial affidavit she says that the counselling which the child and she have later undertaken “has been very beneficial for our relationship.”
However perhaps inevitably after going into the mother’s care, the child’s relationship both with her mother and her siblings has strengthened. The mother says that the child and G have been able to build a solid relationship since the child came into her care. In the Family Report interviews, the child stated that she was “happy with mum” and “feels closer to her now.” She said that she had enjoyed the counselling she and her mother had attended. Further the Family Report writer recited that the child said she had a good sibling relationship with G and H, and was “clearly delighted” with the new baby, J.
I am therefore satisfied that the child’s relationship with the mother has, at least to a considerable extent, been rehabilitated, and she has rekindled and strengthened the sibling bonds which she has with her sisters.
FATHER’S RISK OF HARM TO CHILD
Obviously the fact that the father has in recent times been convicted and served jail time for indecent dealing with a young girl who was in his care, inevitably requires an assessment of the risk which the father poses to the child. That assessment is not helped by the somewhat unusual way in which the father has in the past explained, and continues to explain, his understanding of the circumstances which led to his conviction.
As I have already noted, initially the father vehemently denied any criminal conduct by him. For instance in his affidavit filed 1 October 2013, having made that denial, he proclaimed that he would be pleading not guilty when the matter was next back in court.
However later explanations by the father have focussed upon his lack of recollection of ever so having behaved. For instance he told the Family Report writer that he had “no memory” of committing the offences and said “if I actually did it I would be horrified.”
The matter is not clarified by the father’s evidence as to how he came to plead guilty to the charges. He says he received poor legal advice, and only pleaded guilty in consequence of that advice. Detail of that advice was not in evidence before me, nor detail as to what perceived benefits there were to the father in pleading guilty to an offence which on his version he did not commit. Despite being pressed in cross-examination before me about these issues, the matter was not further explained. However the father’s argument was that merely because he had been convicted in relation to offences of another child did not mean that he was a risk to his own child. Further, the father emphasised that at the relevant time he was under a lot stress, and said that this may have contributed to his lack of memory.
The father’s lack of recall appeared to extend to even the sleeping arrangements on the evening in question. He said that he had a sore back in consequence of which he could not sleep in a normal bed. He thinks on the evening in question he probably slept in a recliner lounge chair, because that was the only place he could get relief. However it appears as though the facts on which he pleaded guilty, and upon which he was sentenced, are quite different, and involve him sleeping on a mattress in the child’s room with both children. Before me he appeared to concede that he did indeed provide the girls with a mattress on which they could sleep on the floor.
The comments of the sentencing judge were not in evidence before me. That is perhaps unfortunate because there is therefore little from which I can glean the purpose of the probation condition restraining the father from having unsupervised contact with any children until May 2016. It may be that the father was, as a condition of his probation, also required to undertake psychiatric treatment. That is supported by paragraph 27 of the Family Report which reads “[the father] reported that after his release from jail he had commenced seeing a psychiatrist and is taking anti-depressant medication.” Other than that prospect, the reason for the temporary restriction to May 2016 is unclear, particularly given that in Queensland, probation could have been ordered to run for three years: Penalties and Sentences Act 1992 (Qld) s 92(2)(a).
No evidence from the father’s psychiatrist was led, nor was any material produced by subpoena directed towards that psychiatrist in evidence before me.
Plainly the court which set the father’s probation conditions regarded him – at least until May 2016 – as an unacceptable risk to children under the age of 16 should he spend unsupervised time with them. His conviction on a plea of guilty warrants that conclusion. The sentencing decision – particularly the admission of guilt which underpins it – may be adopted by me, and I do so: Family Law Act s 69ZX(3)(b). The father’s conflicting and opaque explanations as to his conviction and the events surrounding them do not assist him. His argument that merely because he may have sexually abused a child who was not his, does not thereby mean that he is a risk to his own child, must be roundly rejected.
The father is presently an unacceptable risk of sexual harm to the child.
SHOULD DIFFERENT ORDERS BE MADE TO OPERATE FROM MAY 2016
The father proposes that there should be orders that the child move into his care once the relevant probation condition expires. Therefore he is asking the court to, in effect, restore the child’s arrangements to those which prevailed prior to him being convicted of the two indecent dealing offences. However he is asking for that order to be made many months in advance of the probation condition expiring.
Both the mother and Independent Children's Lawyer say that the court cannot at present contemplate making such orders, because the facts which may prevail at that time are still unsettled. Particularly they say that:
·If the father continues not to avail himself of supervised time with the child at the C Town Contact Centre, and the child continues to establish strong bonds with her mother and siblings, the court would need to assess the child’s relevant attachments after May 2016 on the facts that then prevailed;
·The risk which the father poses to the child may change between now and May 2016. Particularly if the father is indeed in receipt of psychiatric assistance, it may be that any improvement in his behaviour which that effects alters the magnitude of the risk, or at least the conditions which may sufficiently ameliorate the risk.
That said, both the mother and Independent Children's Lawyer expressly contemplate that the father may wish to further litigate once the probation conditions expire, but say that rather than making interim orders to prevail until then, these proceedings should be finally determined, and the father left to bring further proceedings should he see so fit in the future.
I accept the mother’s and Independent Children's Lawyer’s submissions in this respect. The court is simply not in a position to make risk assessments in relation to the father at some future point in time. The court can only assess the risk at this point in time. It is presently an unacceptable one which can only be met by strict supervision. If the risk changes in the future, then the father may seek to re-litigate. However obviously the father would be well advised in any such litigation to present evidence from his psychiatrist as to the magnitude of any risk which he or she believes the father poses, and provide some clear evidence as to the precise terms of any proposed supervision of the father’s time with the child in the event that orders are not made that the child live with him.
SECTION 60CC CONSIDERATIONS
It will be appreciated that in the foregoing discussions, I have traversed many of the relevant s 60CC considerations. To the extent that I have not addressed them, I make the following further observations.
I am satisfied that the child would benefit from having a meaningful relationship with both parents. However that cannot be at the expense of her safety.
The child appears to have expressed some desire to the father to live with him. On the other hand the child expressly did not want to state any wish to the Family Report Writer. She is presently 12 years of age. Even if her wishes were clear – which they presently are not – I would not give them much weight since it appears as though she does not precisely know the nature of risk which the father poses to her, in consequence of which she could not have any appreciation of the magnitude of it.
I am satisfied that the child has a good relationship with both parents. The father emphasises that in the past the child had good relations with his parents, which have been interrupted by the supervision regime. That is unfortunate, but again it cannot be allowed to imperil the child’s safety.
It appears as though the father pays child support in relation to the child.
The effects of the child’s separation from her father have already substantially played themselves out. I say that because the child’s counsellor did not identify any ongoing need for counselling of her. On the other hand the effect of the child moving back into the father’s care would be somewhat more complex, and is likely to become increasingly complex as her time living in C Town continues.
The practical difficulty and expense of maintaining regular personal relations between the child and the father is a major issue here given the father’s lack of means which he says precludes him from regular travel to C Town. No doubt that is what informed him firstly, in suggesting that the child spend supervised holiday time with him in E Town, and alternatively, suggesting that the mother should pay for his costs of travel to C Town. I will discuss both of those matters when considering the orders.
The father alleges that the mother assaulted him during the course of the relationship; it was not explored in the trial or cross-examination. I am unable to make any findings of family violence in this case.
No family violence order has applied.
Whilst it would plainly be preferable to make orders which would not require the potential re-litigation of matters after May 2016, that cannot be at the expense of adequate information as to matters likely then prevailing.
PARENTAL RESPONSIBILITY
The father seeks orders for equal shared parental responsibility. The mother seeks orders for sole parental responsibility.
The presumption in relation to equal shared parental responsibility applies, as I am not satisfied that there are reasonable grounds to believe that there has been family violence or abuse. The question then is whether it has been rebutted by evidence showing that it is not in the best interests of the child that there be equal shared parental responsibility.
I am satisfied that it has been so rebutted. Particularly:
·The parties do not appear to have good communication, as the father’s anger intrudes upon them;
·The father has no knowledge of the child’s living arrangements, schooling or general life beyond that which he can glean from communications with her in his telephone calls.
To the extent that the father has concerns as to matters in relation to parental responsibility, they appear to relate to specifically the child maintaining her surname and present religion. Ultimately the mother indicated in the course of submissions that she would accept orders restraining her from changing the child’s name or changing her religion. Given those orders can be made with her consent, there is little practical benefit in the father having any input in relation to other long-term decision making, given the poor relationship between the parties and his lack of knowledge of the child’s living arrangements and circumstances.
I am satisfied that it is in the best interests of the child that the mother have sole parental responsibility.
LIVING ARRANGEMENTS
The father concedes that the child should continue to live with the mother until his probation expires. I have already indicated that I am not satisfied that the court can presently assess the risk which the father would pose to the child after that point in time. The most one can say is that the father presently does pose an unacceptable risk of harm to the child which requires his time to be supervised.
Whilst the father may in due course wish to re-litigate living arrangements, on the present information in the evidence before me I am satisfied that the child’s best interests see her living with the mother. There will therefore be an order that the child live with the mother.
TIME AND COMMUNICATION WITH FATHER
There is no dispute that the father should continue to have his weekly telephone conversations with the child. There will be an order to that effect. Therefore the only relevant dispute is in relation to the circumstances of supervision until any re-evaluation may be later undertaken as to the risks then posed by the father.
The father accepts that the probation conditions would preclude him from having unsupervised time with the child until their expiration, and therefore does not seek any orders that the child live with him until that time. Whilst perhaps not conceding that there is any risk attached to him of sexual harm to the child, until his probation expires, he nonetheless accepts the need for supervision. However he says that the C Town Contact Centre is not suitable because he cannot afford to travel there and alternatively says that since it was the mother who moved from E Town to C Town, if that is to be the place of supervision, she should bear his costs of travel.
However his primary position is that his time should be supervised by a friend of his, Ms D, at her house in E Town. It appears as though he proposes that in fact the child would travel from C Town to E Town and for the relevant period live with Ms D during school holidays. Ms D swore an affidavit in these proceedings. She is 41 years of age and the mother of 4 children. She is the holder of a Blue Card and is presently in her final year of study. She has an interest in child safety and working in juvenile justice. It appears as though she has worked in an excess of five years, providing, it seems, after school care.
However the father did not make this proposal to Ms I in the course of the Family Report interviews, and hence Ms D was not interviewed by her in the report writing process. Moreover, although Ms D had notice of the proceedings, attempts to contact her by telephone on the day of trial substantially failed. I say substantially failed because on one occasion a woman’s voice answered the relevant mobile phone number which was provided, but then she proceeded to hang up. In those circumstances, even though Ms D’s affidavit was admitted, the weight which can be given to it must inevitably be reduced. Particularly, I know little of her housing arrangements, or the circumstances in which she would be proposing to supervise the father’s time with the child. Given the nature of the father’s convictions, the supervision would need to be vigilant.
I am presently not persuaded that the proposed regime of supervision put forward by the father sufficiently ameliorates the risk which he poses, in part because there is very little detail as to how that supervision would be effected. I am satisfied that the only means of rendering what is presently otherwise an unacceptable risk of harm acceptable, is supervision at a Contact Centre. The only Contact Centre that is available in the circumstances is C Town.
The father contends that the mother should pay for his costs of travel to C Town. He says that she should do so because she moved away from E Town. Whilst that is true, her move did not precipitate the need for supervision. The father’s criminal conduct precipitated that need. That is not the mother’s fault.
I have no knowledge as to the mother’s financial circumstances. She lives in a home where three or four children also reside. It is unlikely in those circumstances that she would have any substantial ability to fund the father’s travel costs. Moreover I have no idea what those costs might be. For instance I do not know whether the father drives or catches a bus or other public transport when he travels from E Town to C Town. He may fly; I simply do not know. I am not persuaded that there should be an order that the mother should pay the father’s costs of travel.
In so saying, I am aware that this may substantially impede the capacity of the child to maintain a face-to-face relationship the father, but absent evidence to show the reasonable practicability of ordering the mother to make any such payment, there is simply no basis on which I could even commence upon considering making such an order.
OTHER ORDERS
I have already indicated that the mother does not oppose orders restraining her from changing the child’s name or religion. There will be orders to that effect.
I am further satisfied that there should be an order permitting the father to obtain information from the child’s school and professionals who treat her, and there will therefore be an order in terms of paragraph 9 of the father’s Response.
THE FUTURE
As I have already discussed, there is a very real prospect that after May 2016, the father will seek to re-agitate proceedings. Nonetheless I am satisfied that for present purposes these proceedings should conclude, and in the event that the father seeks to re-litigate, he will need to commence proceedings afresh.
CONCLUSION
For these reasons there will be orders as set out at the commencement of this judgment.
ADENDUM
When this matter was called on for the delivery of the foregoing reasons, the father advised me that the termination of his probation had been brought forward to January 2016, rather than May 2016. There is no reason to doubt him in that regard, however that fact does not incline me to vary either the outcome or this judgment or my reasons for so concluding.
I certify that the preceding eighty five (85) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 21 October 2015.
Associate:
Date: 21 October 2015
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Injunction
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Procedural Fairness
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