VIETH & VIETH
[2019] FamCA 453
•4 July 2019
FAMILY COURT OF AUSTRALIA
| VIETH & VIETH | [2019] FamCA 453 |
| FAMILY LAW – CHILDREN – Child related proceedings – undefended hearing – best interests of the child – need to protect the child from harm – where the mother seeks orders that the child live with her and have no contact with the father – where the Independent Children’s Lawyer seeks orders that the child live with the mother, have no contact with the father and the mother continue to receive ongoing support – where the father is incarcerated and has not participated in the proceedings – where the father has been notified of the proceedings – where the father is convicted and currently servicing a term of imprisonment for maintaining a sexual relationship with a young person – presumption of equal shared parental responsibility not applied – where there is a need to balance the issues of risk and the prospect of the child having a meaningful relationship with each parent – where it is found no such benefit to the child to have a meaningful relationship with the father – where it is found that there is an unacceptable risk in the child spending time with the father – where there are allegations of family violence – orders made in accordance with those sought by the Independent Children’s Lawyer and the mother for the children to live with the mother and spend no time or communicate with the father and mother to receive ongoing counselling support. |
| Family Law Act 1975 (Cth) s 60CC |
| Blinko & Blinko [2015] FamCAFC 146 Sirola & Sirola and Anor (No.3) [2016] FamCA 1076 Stott & Holgar and Anor [2017] FamCAFC 152 Wilde & Foster [2018] FamCA 502 |
| APPLICANT: | Ms Vieth |
| RESPONDENT: | Mr Vieth |
| INDEPENDENT CHILDREN’S LAWYER: | Tierney Law |
| FILE NUMBER: | HBC | 181 | of | 2019 |
| DATE DELIVERED: | 4 July 2019 |
| PLACE DELIVERED: | Hobart |
| PLACE HEARD: | Hobart |
| JUDGMENT OF: | McClelland DCJ |
| HEARING DATE: | 4 July 2019 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | Mr Edmondson |
| NO APPEARANCE BY OR ON BEHALF OF THE RESPONDENT |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Powe |
Orders
THE COURT MAKES THE FOLLOWING PROCEDURAL ORDER:
In circumstances where the father has not filed any response or any documentation in response to the mother’s Application in this matter and where the father has failed to appear in proceedings in the matter, in particular on 28 March 2018 before the Registrar, and, in circumstances where I am satisfied the solicitor for the mother and the ICL have made attempts to contact the father, I make orders that the matter proceed on an undefended basis.
IN ADDITION, THE COURT ORDERS THAT:
Ms Vieth (“the mother”), have sole parental responsibility of X (“the child), born … 2011.
The child live with the mother.
The child shall spend no time with and not communicate with the Mr Vieth (“the father”).
The mother do all reasonable acts and things to comply with the recommendations of her treating medical practitioners in relation to the treatment of her mental health conditions.
The mother, within 28 days of this Order, enrol with and attend upon the D Service. The mother is to do all reasonable acts and things to comply with any counselling program/s recommended by the D Service for the mother and/or the child and to accept and comply with any recommendation of the referral by Relationships Australia for the mother and/or child.
That upon attending the D Service, the mother have leave to and will provide a copy of the Orders herein to the D Service and seek assistance for herself and/or the child given the following:
(a) The mother alleges she has been the victim of significant family violence perpetrated upon her the father;
(b) That the father has been sentenced to a term of imprisonment of 12 years for the protracted sexual abuse of another of his children from a former relationship while that child was between the ages of six and 15;
(c) That the child who is the subject of the proceedings I am hearing today has not received any specialised service or counselling to develop and enhance protective behaviours; and
(d) That the child been present in a household where the mother alleges she has been the victim of significant family violence including sexual violence to both the child’s mother and the child’s sibling over a significant period;
That the mother within 28 days of the Order enrol in and commence a parenting separation program.
That the appointment of the Independent Children’s Lawyer continue for a period of 28 days from this Order and during this period the mother cause the child to attend an appointment with the Independent Children’s Lawyer.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Vieth & Vieth has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT HOBART |
FILE NUMBER: HBC 181 of 2019
| Ms Vieth |
Applicant
And
| Mr Vieth |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
Introduction
This matter concerns an application for parenting orders by Ms Vieth (‘the mother’), in respect of the child, X born in 2011 (‘the child’). X is the child of the Applicant and Respondent, Mr Vieth (‘the father’).
I’m satisfied that it is appropriate, for the matter to proceed today on an undefended basis for the following reasons. The father, who is currently incarcerated, has not engaged in these proceedings. He has not filed any response or any other documentation. The father has failed to appear in respect to any proceedings before the Court to date, including before the Registrar on 28 March 2019. I am satisfied that both the solicitor for the mother and the Independent Children's Lawyer have corresponded with the father to advise him that if he failed to appear in the proceedings today that the matter would likely proceed on an undefended basis.
Proposals
The orders sought by the mother were set out in her Initiating Application filed 20 March 2019; inter alia, she sought orders for sole parental responsibility, for the child to live with the mother and for the child’s time with the father to be reserved.
During the course of the proceedings, having regard to the evidence, the mother and the Independent Children’s Lawyer have proposed orders that are set out in a Minute of Order marked ‘Exhibit D’. That document reflects the orders that I will make in these proceedings.
Evidence
The mother relied upon the following documents:
a)Initiating Application filed on 20 March 2019;
b)Affidavit of Ms Vieth sworn on 5 March 2019;
c)Notice of Risk filed on 20 March 2019; and
d)Affidavit of Service sworn by Ms B filed 25 May 2019.
The mother further relies upon documentation produced from the Child-Safety Service Tasmania, and also the Supreme Court of Tasmania in respect to the criminal prosecution of the Father. Those documents which have conveniently been tabbed by the parties can be summarised as followed.
The first document tabulated is a memorandum of sentence dated … 2019. That document notes the father has been convicted of maintaining a sexual relationship with a young person, namely, his daughter from a previous relationship, Y. He has done so since Y was six years of age. The memorandum of sentence notes that the father pleaded guilty and has been convicted and sentenced to 12 years’ imprisonment commencing in late 2018, with a non-parole period of seven years.
Also of relevance are the comments of the Judge on passing sentence which are set out at tab two of the material which has been produced.
At tab three are the Crown ‘statement of facts’ relied upon in the prosecution of the father. The statement of facts note that the charges relate to, as I’ve mentioned, the father’s conduct in respect to his child from an earlier relationship, Y, born in 2002, and that the sexual abuse commenced when the child was six and continued until the child was 15.
The statement of facts contends that the child was sexually abused by her father on almost every contact visit she had with him. At paragraph 4, the father advised Y that he would “kill himself and it was not his fault and he was not well”. At paragraph 6, the statement contends that the sexual abuse that the child was subject to was regular, sustained and non-consensual. At paragraph 8, the statement contends that the sexual abuse involved the accused penetrating and/or touching the child’s vagina. At paragraph 9, the statement contends that, from age 10 the sexual abuse involved vaginal rape. Paragraph 23 outlines that “the eight identifiable occasions are not isolated occasions” and that the child was subjected to hundreds of non-consensual sexual acts by the accused over the period of the indictment. Paragraph 25 is evidence of the child, Y, self-harming and being taken to hospital. Paragraph 30 sets out an example of the emotional pressure on the child, Y. Paragraph 32 includes a reference to the father voluntarily admitting himself to a psychiatric ward.
Tab four of the Supreme Court records contains a record of the father’s prior convictions. Tab five sets out the charges. Tab six is the victim impact statement of Y, indicating the appalling and highly distressing impact of the conduct on her.
Tab seven is the forensic psychological report by a clinical psychologist, Dr C, dated 26 March 2019. Significantly, at paragraph 28 of the report noted that the father stated “he had experienced sexual thoughts and fantasies relating to children from shortly after the onset of puberty right through his adult life.” At paragraph 33 of the report the psychologist states that Mr Vieth’s self-reported admissions of the offence and the disclosures made by the complainant very clearly indicate that Mr Vieth meets diagnostic criteria for paedophilia. At paragraphs 55, Dr C describes Mr Vieth’s offending behaviour as “chronic, escalating and involving psychological coercion.”
At paragraph 68, Dr C outlines:
that in order for the risk to be mitigated and managed in the future, Mr [Vieth] will need to be motivated to participate in a sex-offending-treatment program and follow-up support. Whilst sexually deviant patterns of arousal may subside over time with treatment and management, there is no treatment that has been shown to eradicate them, making long-term management primary strategy. Additional factors such as substance abuse, intimacy deficits, distorted sexual behaviours, interpersonal problems and coping strategies also need to be addressed.
As noted above, the parties also rely upon a second bundle of subpoenaed documents produced by Child-Safety Service Tasmania. The documentation which has been produced notes a reference to the child, the subject of these proceedings, X, being at home during violent incidents. The report dated December 2018 also notes that there is an issue, as disclosed by the mother in her own Affidavit to which I have earlier referred, that the mother faces mental-health challenges associated with two conditions, for which she is receiving treatment. The risk analysis notes “the mother’s mental health is a complicating factor in her ability to provide care to X but at this point mother’s mental health appears to be managed.”
Relevant law – concepts and principles
The relevant legal principles that this Court is required to apply in the determination of this case are set out in Sirola & Sirola and Anor (No.3) [2016] FamCA 1076, at paragraphs 63–76, as follows:
[63] Part VII of the [Family Law Act 1975 (Cth) (‘the Act)] sets out the relevant statutory provisions applicable to proceedings in relation to children. Section 60B sets out the objects and principles of Pt VII. These 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.
[64] Section 60B(4) notes that an additional object of Pt VII of the Act is to give effect to the Convention on the Rights of the Child (“the Convention”). Article 19 of the Convention requires parties to the Convention to take steps, including through “judicial involvement”, to:
protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child.
[65] More generally, the Act makes clear that in exercising its jurisdiction, the Court has a responsibility to “protect the rights of children and to promote their welfare” (s 43(1)(c)).
[66] Section 61DA(1) 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”. Relevantly for these proceedings, s 61DA(2) provides that the presumption does not apply if:
(2)…there are reasonable grounds to believe that a parent of the child (or a person who lives with the parent of the child) has engaged in:
(a)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
(b)family violence.
[67] Abuse is defined in s 4 of the Act in the following terms:
abuse, in relation to a child, means:
(a)an assault, including a sexual assault, of the child; or
(b)a person (the first person) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is unequal power in the relationship between the child and the first person; or
(c)causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or
(d)serious neglect of the child.
[68] Family violence is defined in s 4AB(1) of the Act as follows:
(1)For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful.
[69] Section 4AB(2) provides a non-exhaustive list of behaviour that may constitute family violence and relevantly for these proceedings includes:
(a)an assault; or
(b)a sexual assault or other sexually abusive behaviour; or
(c)stalking; or
(d)repeated derogatory taunts; or
(e)intentionally damaging or destroying property;…
[70] Section 4AB(3) provides that “a child is exposed to family violence if the child see or hears family violence or otherwise experiences the effects of family violence”. Section 4AB(4) provides a non-exhaustive list of situations that may constitute a child being exposed to family violence and includes:
(a)overhearing threats of death or personal injury by a member of the child’s family towards another member of the child’s family; or
(b)seeing or hearing an assault of a member of the child’s family by another member of the child’s family; or
(c)comforting or providing assistance to a member of the child’s family who has been assaulted by another member of the child’s family; or
(d)cleaning up a site after a member of the child’s family has intentionally damaged property of another member of the child’s family; or
(e)being present when police or ambulance officers attend an incident involving the assault of a member of the child’s family by another member of the child’s family.
The presumption of equal shared parental responsibility
[71] In these proceedings it would be inappropriate for the presumption of equal shared parental responsibility to be applied by the Court in circumstances where, as I will detail, the father has engaged in conduct that constitutes family violence as defined in s 4AB of the Act.
[72] As an order for equal shared parental responsibility will not be made, the pathway set out in s 65DAA does not apply and the Court is not obliged to consider equal time or substantial and significant time. Accordingly, the Court is “at large” to consider what arrangements will promote the best interests of the children having regard to s 60CC and the considerations contained therein.
Paramount consideration in making parenting orders
[73] Section 60CA provides that in deciding whether to make a particular parenting order in relation to the child, the Court must regard the best interests of the child as the paramount consideration. This is also confirmed in s 65AA.
[74] Section 60CC sets out the list of matters that the Court must consider in determining what is in the child’s best interests. Whilst the Act requires the Court to consider all s 60CC factors, the central issue in these proceedings is balancing the primary considerations set out in s 60CC(2) against one another. Those considerations are:
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
[75] In balancing these considerations, s 60CC(2A) of the Act requires the Court to give greater weight to “the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence” (s 60CC(2)(b)).
[76] Section 60CC(3) sets out additional considerations in determining what is in a child’s best interests. Those considerations include:
•Sub-section (3)(a) — any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views.
•Sub-section (3)(b) — the nature of the relationship of the child with each of the child’s parents and other persons, including any grandparent or other relative of the child.
•Sub-section (3)(c) — the extent to which each of the child’s parents has taken, or failed to take, the opportunity, to participate in making decisions about major long-term issues in relation to the child, to spend time with the child, and to communicate with the child.
•Sub-section (3)(ca) — the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child.
•Sub-section (3)(d) — the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents, any other child or other person (including any grandparent or other relative) with whom the child has been living.
•Sub-section (3)(e) — the practical difficulty and expense of a child spending time with and communicating with a parent and whether that will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis.
•Sub-section (3)(f) — the capacity of each of the child’s parents, and any other person, to provide for the needs of the child, including emotional and intellectual needs.
•Sub-section (3)(g) — the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and either of the child’s parents and any other characteristics of the child that the Court thinks relevant.
•Sub-section (3)(h) — issues pertaining to the culture of the child if the child is Aboriginal or a Torres Strait Islander.
•Sub-section (3)(i) — the attitude to the child, and parental responsibilities, by each of the child’s parents;
•Sub-section (3)(j) — any family violence involving a child or a member of the child’s family;
•Sub-section (3)(k) — any family violence order that applies or has applied involving the child or a member of the child’s family and if applicable, taking into account a number of stated matters;
•Sub-section (3)(l) — whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child; and
•Sub-section (3)(m) — any other facts or circumstances the Court considers relevant.
Essentially those provisions to which I refer, confirm the fundamental object of proceedings involving applications for parenting orders is to make orders that are in the best interests of the child and in doing so I am required to have regard to those matters set out in section 60CC of the Act. I have had regard to all of those matters, but specifically in terms of the most relevant issues on the facts of this case. I address the following considerations specifically.
The concept OF A meaningful relationship
Firstly section 60CC (2A) requires me to have regard to the prospect of the child having a meaningful relationship with both parents, and indeed, as the solicitor for the mother indicated, the legislation speaks in terms of the child having a right to have a meaningful relationship with both parents. However, that needs to be balanced as against any issues of risk. Section 60CC (2A) prioritises risk above the issue of a meaningful relationship.
In a decision of Wilde & Foster [2018] FamCA 502, at paragraphs 97–100, I refer to several authorities confirming that the concept of a meaningful relationship is but one of the factors to which the Court is required to have regard, to the extent that it is in the interests of the child to have such a meaningful relationship. It is contended by both the mother and the Independent Children's Lawyer that, on the facts of this case, there is no such benefit. For reasons that I will explain, taking a cautious approach at this stage of proceedings, I accept that is the case.
issue of risk
The second consideration set out in section 60CC (2B) of the Act, is the question as to whether there is an unacceptable risk of physical and/or psychological harm in the child spending time with the father. The Court has confirmed that, where unacceptable risk is alleged, the Court must give consideration to the facts of the case to decide whether or not those facts could reasonably be said to raise an unacceptable risk of harm: Stott & Holgar and Anor [2017] FamCAFC 152 at 38.
Having regard to the evidence to which I have earlier referred, I am satisfied, that there is an unacceptable risk in this child spending time with the father or indeed communicating with the father. In arriving at that decision, I note that in Blinko & Blinko [2015] FamCAFC 146, the Full Court discussed the appropriate approach to dealing with issues of risk and the obligation of the Court to consider whether the imposition of conditions or other safeguards would ameliorate those risks. The Full Court usefully summarised relevant authorities at paragraph 83, as follows:
It may be taken as well established by a line of authorities generally acknowledged to commence with Russell & Close (Unreported Full Court, 25 June 1993) that the following are correct statements of principle:
·If a Court is satisfied that a parent represents an unacceptable risk of harm to a child, then unless that risk is able to be sufficiently managed or ameliorated by, for instance, supervision of any time or communication between the parent and the child, the best interests of the child may require an order prohibiting that parent from spending time or communicating with the child;
·If the Court does not find that a parent represents such an unacceptable risk of harm, nonetheless it may take into account anxiety on the part of the other parent arising from their genuine, but not necessarily rational, belief that the parent represents such a risk of harm. In such a case, the other parent’s belief must be genuinely held. If it is entirely irrational and baseless, then the genuineness of the belief would clearly be open to doubt. However where such a belief is genuinely held, if the child spending time with a parent would sufficiently erode the other parent’s capacity to properly care for the child, then that may of itself mean that the ensuing detriment to the child determines that it is in their best interests not to spend time or communicate with the parent;
·Further, where the history of abuse, violence or like behaviour between two parents means that any continued interaction between them would similarly erode the resident parent’s capacity to care for the child, the need for peace and tranquillity in their household may be a more compelling need for the child and hence also might justify an order prohibiting the other parent from spending time or communicating with a child: see Sedgley & Sedgley (1995) FLC 92-623.
In this matter I am satisfied that the facts pass the threshold, set out by the Full Court in Blinko & Blinko (supra), where there should be no contact between the child and the father. Most relevantly, I have had regard to paragraph 68 of the forensic psychologist assessment by clinical psychologist Dr C dated 26 March 2019, to which I have earlier referred.
I also note that the mother attests to being the subject of significant family violence at the hands of the father including allegations that she has been the subject of two incidents where she has been anally raped. In circumstances where the father is facing criminal charges relating to allegations made by the mother including those allegations, it is unnecessary and inappropriate, for this Court to make findings in respect to those allegations of the mother. That is not to say, however, that the Court dismisses the potential significance of those allegations, nor does the Court ignore the potential impact that any such conduct may have had on the mother.
In summary, having regard to the facts of this matter including the opinion expressed at paragraph 68 of the report of Dr C, I am satisfied that there should be an order that the child does not spend any time nor have any communication with the father.
Additional Considerations
The issue of risk is such a dominant issue in these proceedings that all other considerations pale into insignificance. However, for completeness I can indicate I have had regard to all of the matters set out in section 60CC (3) of the Act but most relevantly for this decision, I have had regard to the following.
Any views expressed by the child
Firstly in terms of any views expressed by the child – I accept the mother’s contention that the child is too young for her views to be taken into consideration.
Nature of the child’s relationship with each of the child’s parents and other persons including grandparents
I accept the mother’s unchallenged evidence that the child has an excellent relationship with herself and other members of her maternal family, including her grandmother, her aunties and uncles and also her great-aunts. I also accept the mother’s evidence, which is to her credit, that the child has a good relationship with her paternal aunties and paternal uncle, Jack. I note that the mother’s states at paragraph 22 of her Affidavit that she will endeavour to facilitate the child’s relationship with those particular members of the paternal family.
The extent to which each of the child’s parents has taken or failed to take the opportunity to participate in making decisions about major long-term issues in relation to the child
I accept the mother’s unchallenged evidence that she has been the child’s primary carer, although the mother acknowledged that when she resided with the father, that he played some role in caring for the child during the period of their relationship. The mother acknowledges that after separation the child would visit her father and spend overnight time on weekends.
There is some uncertainty, given the child’s age, as to whether she either witnessed and/or herself was the subject of inappropriate conduct on the part of the father, and it is appropriate, that in the orders I make in these proceedings, which have, with respect, sensibly been recommended by the mother and the Independent Children’s Lawyer, provision be made for that possibility.
I accept that the mother has provided for all the child’s day-to-day needs, including feeding her, clothing her and ensuring that her personal hygiene requirements are met as well as taking her to and from school each day. I appreciate the mother is endeavouring to ensure that the child has a balanced life-style through participating in extracurricular activities. I accept that since separation the mother has been responsible for making decisions about major long-term issues in relation to the child.
The likely effect of any changes in the child’s circumstances
The child does not spend time with the father as a result of the father being incarcerated, and accordingly these orders will not result in a change in the child’s circumstances.
The practical difficulty and express of the child spending time with and communicating with the parent
Clearly, there would be some complications associated with the child attending visitations upon her father in prison. However, for the reasons that I have already set out, I am strongly of the view that it is not appropriate and indeed presents an unacceptable risk of significant harm to the child should there be contact and communication between the child and her father.
Other relevant matters
In terms of the orders I propose to make in these proceedings, as indicated by the reference to Blinko & Blinko (supra) to which I have referred, there is an obligation on the Court to consider orders that can mitigate any issue of risk.
As is appropriately acknowledged by the mother and as I have indicated in this decision, the mother does have some mental-health challenges. However, I have referred to the documentation produced by Child-Safety Services Tasmania and noted that, at this point the mother’s mental health appears to be appropriately managed. The mother, through her legal representative and the Independent Children's Lawyer, have proposed orders whereby the mother will receive ongoing support through attending Relationships Australia. Those orders are, in my view, entirely appropriate. It is significant, that the mother acknowledges those challenges, that she is addressing those challenges and, also, that she consents to orders providing ongoing support for her to address those challenges.
Conclusion
For the reasons provided in the body of this decision, I make orders as sought by the mother and the Independent Children’s Lawyer as set out at the commencement of these Reasons for Judgment.
I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of the Honourable Deputy Chief Justice McClelland delivered on 4 July 2019.
Associate:
Date: 17 July 2019
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