WEINBERG & WEINBERG
[2014] FamCA 1089
•5 December 2014
FAMILY COURT OF AUSTRALIA
| WEINBERG & WEINBERG | [2014] FamCA 1089 |
| FAMILY LAW – CHILDREN – Best interests – with whom the child shall live and spend time – where the child has meaningful relationships with both parents – where there have been sexual abuse allegations made against the father by the child’s step-sister and the daughter of a previous partner – where although there is no evidence that the child has been abused in any way by the father, the allegations are of sufficient concern to justify a cautious and conservative approach to the child’s safety – where the mother has protected the child from these allegations and the child is unaware of the family turmoil – children’s views – where the mother has the capacity to meet the needs of the child, including her emotional and intellectual needs – where the parties agree that the child should continue to live with the mother – where the father expressed the view that he saw the need for his time with the child to be supervised – orders made accordingly – where the father’s partner, or another private person, has the opportunity to be the supervisor, once trained, so that time can occur outside a contact centre. FAMILY LAW – CHILDREN – Parental Responsibility – mother to have sole parental responsibility. |
| Family Law Act 1975 (Cth) ss 60CC, 64B |
| APPLICANT: | Ms Weinberg |
| RESPONDENT: | Mr Weinberg |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid Queensland |
| FILE NUMBER: | (P)BRC | 4857 | of | 2009 |
| DATE DELIVERED: | 5 December 2014 |
| PLACE DELIVERED: | Newcastle |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Cleary J |
| HEARING DATES: | 3 and 4 September 2014 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Lyons |
| SOLICITOR FOR THE APPLICANT: | Hayley Ritchie Solicitors |
| RESPONDENT: | In person |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr McGregor |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid Queensland |
Orders
That the orders made in this Court on 15 December 2010 together with all prior parenting orders in this Court and in the Federal Circuit Court are hereby discharged.
The mother shall have sole parental responsibility for K, born … 2004 (“the child”).
The child shall live with the mother.
That each parent shall notify the other in writing (which may include text) of his/her current residential address and telephone number and shall advise the other promptly of any changes to such contact details.
Provided that the father has complied with Order 4 hereof, the mother shall advise the father in writing of:
5.1any decision made in the exercise of her parental responsibility for the child, including but not limited to change of school, serious illness and/or medical emergency and religious instruction;
5.2the telephone number on which the father is able to communicate with the child.
That the father shall communicate with the child by telephone each week on Monday at a time between 5.30 pm and 6.30 pm, with the father to instigate the call and the mother to facilitate, to the extent necessary, receipt of the call by the child.
That the child shall spend time with the father, which must be supervised at all times, as follows:
7.1for a period of two hours each calendar month either at the N Children’s Contact Centre (“the Contact Centre”) or by a supervisor from the Contact Centre; OR
7.2for a period up to eight hours on one day of each alternate weekend by a person who has been introduced to, and approved of by, the mother as a supervisor and further that the person has undertaken training as a volunteer supervisor by Brisbane City Children’s Contact Services or an agreed equivalent service.
Order 7 hereof shall be suspended in the following circumstances:
8.1during school holiday periods for the first half in even numbered years and the second half in odd numbered years; and
8.2 during periods when the child is absent from Australia with the mother, pursuant to Order 10 herein.
Each party who has not already done so, shall within seven days of the date of these Orders, contact the Contact Centre (located at …, telephone number …) and shall do all acts and things necessary to register with the Contact Centre and attend when required by the Contact Centre to attend for an intake interview AND each party:
9.1shall comply in all respects and with every reasonable request made by the Manager of the Contact Centre; and
9.2is responsible for the costs associated with his/her own intake appointment and thereafter the father is solely responsible for the costs of his supervision for time with the child.
Each party shall:
10.1do all acts and things necessary and sign all documents for the issue of a passport for the child within 28 days of receipt by him, at the address provided pursuant to Order 4 hereof, of a written request from the mother for the father to sign the passport application; and
10.2the passport for the child once issued is to be retained by the mother.
The mother shall be permitted to travel with the child to any country which is a signatory to the Hague Convention, with the giving of no less than 14 days’ notice to the father in writing of the intended travel, provided that she provides to the father a document setting out the travel details, including the dates of departure and return.
The Independent Children’s Lawyer shall provide a copy of these Orders to the school at which the child attends and thereafter the Independent Children’s Lawyer is discharged.
These Orders operate as authority for release to the father of copies of documents relating to the progress and welfare of the child at school, including but not limited to school reports, school newsletters and applications for school photographs.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Weinberg & Weinberg 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 BRISBANE |
FILE NUMBER: (P)BRC 4857 of 2009
| Ms Weinberg |
Applicant
And
| Mr Weinberg |
Respondent
And
| Independent Children’s Lawyer |
REASONS FOR JUDGMENT
Introduction
This is a dispute between parents over the exercise of parental responsibility and appropriate orders for time and communication between the father and the child, who is now aged 10 years. She is the only child of the parties’ marriage.
The child lives with the mother and the parties agree she should continue to do so.
The applicant is the mother, aged 43. Two of her older children, her daughters, are now young adults and live independently. At this time her only son, aged 15 years, and the subject child are living with her at home.
The respondent is the father, aged 44. In addition to the subject child, he has a young son, aged three, born to his current relationship. His household consists of himself, his partner, their child and his partner’s two older children, a teenage daughter aged 17 and a son aged five.
Short History
The parties began living together in their home country, New Zealand, in about May 2003. The mother had three children (‘R, G and C’) from a prior relationship who also lived with the parties. The subject child was born the following year.
In 2005 the parties married.
In February 2007 they moved to Australia and less than 12 months later, in May 2008, they separated.
Post separation the parties easily arranged time for the subject child and her older step-brother and sister to see the father most weekends.
In April 2009 everything changed. The mother’s then13 year old daughter, G, told her mother that in the previous year the father had molested her at times when she was staying in his home. She ceased having any time or communication with her step-father from that date.
The mother then reconsidered her attitude to arrangements for the subject child.
The allegations raised and investigations undertaken by State authorities and court appointed experts over three years are summarised as follows:
6 May 2008 to November 2008
All children (G, C and the subject child) spend alternate weekends with the father from Friday to Sunday.
October 2008
Six months after this time (April 2009) G tells her mother (and later the family consultant) that it was at this time that she was repeatedly fondled, molested and assaulted by the father. Note that G had just turned 13 years at this time.
Prior to or in November 2008
The mother receives a call from G, from the home of the father saying she wanted to come home. The mother collected her. There was no explanation from G. The mother asked the father what had happened and he said ‘she is just in a foul mood’.[1]
The mother tells G she did not have to spend time with the father. G chose not to thereafter.
The week leading up to Christmas 2008
The father was staying in mother’s home at his request. The mother notices the father standing in G’s room one evening, stroking G’s arm. The following conversation then took place:
M: What are you doing?
F: Just making sure she is okay.
The next day the mother told the father to leave the home, again.[2]
March 2009
The mother made G stay with the father for the weekend. C and the subject child were also present.
26 April 2009
G gives the mother a handwritten note[3] as explanation for her behaviour (that is, viewing/posting provocative images on a website).
The note refers to father ‘touching her boobs’ and being scared ‘he’d do more’.
27 April 2009
G was interviewed by the District Child Protection & Investigation Team (‘DCPIT’).
G says very little.
27 April 2009 to
1 June 2009Between the time of police interview and mother’s first affidavit, G tells the mother that she woke up, she told the father ‘Go away’ and rolled over to face the wall. G said that the father sat on her bed for a little while and then left.[4]
Sometime after first Police interview April 2009
G writes a note for the father that she is very distressed and angry. She referred to repeated nightmares about his conduct towards her, ‘You’ve screwed my life’.[5]
20 October 2009
G was interviewed by the family consultant, [Ms Q]. [G is now aged 13 years 11 months].
She said the mother had told her that before separation, the father would stand in her room when she was asleep.
G discloses to the family consultant conduct by the father during her visits to him post-separation.
The first time G woke up to find him doing it (‘feel[ing] up my boobs’), she said she kicked him and yelled and ‘he wouldn’t go’ but that he did eventually leave.[6]
The family consultant asked G to be more specific. She said the father had ‘grabbed’ her breasts. The worst thing was when he ‘felt me down there’ [her vagina].[7]
G said she did not talk to the mother about this when it happened, ‘Only came out in July’.
G said she told the mother when the ‘custody started happening’. ‘I don’t want something like that happening with the little kids’.[8]
G said it was ‘scary’ and ‘felt like my fault’ before she disclosed it to the mother.
G referred again to trying to keep the younger children safe.[9]
Note that at this time, the alleged events were one year prior.
The family consultant considered her report vague and that it was possible she was not telling the truth.[10]
20 October 2009
The mother is interviewed by the family consultant [Ms Q].
The mother tells the family consultant that:
(i) during the marriage the father had commented on the development of her older girls (R and G) and their periods etc.
(ii) the girls said their friends felt uncomfortable around him so did not come over to the home.[11]
20 October 2009
The father is interviewed by the family consultant [Ms Q].
The father denied consciously or purposely touching G: ‘Could have happened inadvertently’.
The father described G as capable of lying; she identified as an ‘EMO’ – and ‘can be melodramatic to the point of threatening suicide and making cuts on her wrists’.[12]
October 2009
The mother took G to the Child & Youth Mental Health Service.[13]
Late 2009/early 2010
G tells Dr [H] (later in 2010) that it was at this time that she had thoughts of killing herself.
G began cutting herself in early 2010.
25 February 2010
The parents, as well as G, C and the subject child, are interviewed by family consultant, [Ms B].
G expressed ‘passionate anger’ at the father and the impact of his actions on her life.[14]
G disclosed extensive ‘touching of her body by [the] father including inside and outside her vagina’.
G identified that this occurred on three weekend occasions before she stopped going [in November 2008].
G disclosed that she was scared to say more to the male police officer [in April 2009] than touching ‘on the boobs’.[15]
17 March 2010
CAPIA [Ms B] released.
The Family Consultant expressed the view that G’s ‘emotional state … appeared congruent with her disclosures’ and that she was ‘distressed about the allegations and significantly affected emotionally’.[16]
There was a recommendation that the mother request a re-interview of G by a female police officer, experienced in dealing with victims of child sexual abuse.
April 2010
G is re-interviewed by a female police officer.
[Video] G provides more information.
05 July 2010
Parties and G interviewed by Dr [H] for a report.
Father refers to an incident early in the relationship where the parties had a fight over the mother’s daughter R (then aged 13-14 years) putting her legs on his knees whilst watching television.[17]
The father reports that his previous relationship with G had been ‘hot and cold – better when she was younger’.
Note that G at this stage was aged 14 years 9 months.
G stated she had been ‘sexually assaulted by my step-dad’ three or four times.[18] She was willing to talk to a doctor.[19]
First time (October 2008) G was in bed asleep and woke to ‘[the father] touching my boobs’. She kicked at him; told him to go, and after a while, he did.
Second time (two weeks later) G was in bed. The father touched her breasts and ‘down there’ for a couple of minutes. She told him to stop and go away.
The third time contained a similar set of events.
G stated that when the father lived with the mother she would wake up and see him watching her.
She described a range of painful emotions in response to the event.
02 August 2010
The mother filed a Notice of Abuse setting out much more extensive disclosures by G of events between 1 May 2008 and 30 June 2009.[20]
29 September 2010
The parents, G, C and the subject child were interviewed for further family report by the previous family consultant [Ms B].
[[Ms B] speaks to Dr H about his interviews in July 2010 before release of report].
The mother reported that G had been progressing well until she was told about this interview and then it plummeted: ‘I thought the last one [interview with Dr H in July 2010] was the last time’.
The father was critical of G for making allegations against him to take pressure off herself.[21]
G, now almost 15 years, reported as having felt listened to when she was interviewed by a female police officer (April 2010).
The family consultant reports that she viewed the taped interview of G (April 2010) describing G’s account as consistent with her non-verbal presentation, congruent with her account.[22]
Approximately November 2010
The father is charged with offences in relation to G.
13 December 2010
Report by Dr H filed in Court.
Dr H gives the opinion that G had suffered from an Adjustment Disorder with Depressed Mood, resolved by time of interviews (in July 2010). The stressor had been the allegations of sexual abuse against her step-father and the subsequent investigations. This is last interview for G.
November 2011
G, now 16 years, gives evidence three years after alleged events. Trial concluded early; father discharged – Nolle prosequi.
20 December2013
G leaves her mother’s household to live independently.
[1]Affidavit of mother filed 04/06/2009, par 16 & affidavit filed 10/11/2010, par 43
[2]Affidavit of mother filed 04/06/2009, par 17
[3] Affidavit of mother filed 04/06/2009, pars 27-29, Annexure ‘A’; First Notice of Abuse filed 04/06/2009, Part F, par 10
[4]Affidavit of mother filed 04/06/2009, par 34
[5]Affidavit of mother filed 10/11/2010, Annexure “C”
[6]Family Report dated 09/11/2009, par 60
[7]Family Report dated 09/11/ 2009, par 61
[8]Family Report dated 09/11/ 2009, par 62
[9]Family Report dated 09/11/ 2009, par 67
[10]Family Report dated 09/11/ 2009, par 69
[11]Family Report dated 09/11/ 2009, par 12
[12]Family Report dated 09/11/ 2009, par 15
[13]Report of Dr H dated 11/12/2010, p 13 of 28
[14]CAPIA dated 17/03/2010 par 6
[15]CAPIA dated 17/03/2010 par 6
[16]CAPIA dated 17/03/2010 par 12, p 6
[17]Report of Dr H dated 11/12/2010 p 8 of 28
[18] Report of Dr H dated 11/12/2010 p 12 of 28
[19]Report of Dr H dated 11/12/2010 pp 13 of28
[20]Notice of Abuse filed 02/08/2009, Part F, 1-4
[21]Family Report dated 04/11/2010, par 25
[22]Family Report dated 04/11/2010, par 52
From May 2009 the subject child and her brother spent no time with the father.
In mid-2009 the father began a six month relationship with a new partner [Ms H-G]. She had a young teenage daughter, living with her.
On 4 June 2009 the mother filed an application in the Federal Circuit Court seeking orders for the time between the child and the father to be supervised, identifying the potential risk as arising from the disclosures made by G. By his response, the father pressed for unsupervised time on alternate weekends and other occasions.
On 3 August 2009 interim orders were made for supervised time between the father and the subject child and her brother at a contact centre on alternate weekends and for defined telephone communication.
Contact in a contact centre began in September 2009.
In January 2010 the father ended his relationship with Ms H-G. Her teenage daughter made a complaint to her mother that the father had been watching her while she was in the shower when the mother was absent from the home.
In June 2010 the father began a new relationship with a new partner [Ms H] who had a 14 year old daughter. That relationship ended soon after and in September 2010 the father began the relationship with his current partner [Ms DH], who at that time had a 14 year old daughter and an infant son.
Child Adolescent and Adult Psychiatrist, Dr H, in his most recent report[23] expressed that it was a matter of clinical interest that a number of the women with whom the father chooses to have relationships have adolescent daughters. The story of conflict had emerged between the parents over some of the father’s behaviour towards the mother’s eldest child, R, which the mother had been unconcerned about or was at least able to dismiss from her mind at the time. There was then the allegation made to child protection authorities in relation to the daughter of Ms H-G.
[23]Report of Dr H dated 03/09/2014, p 15
Dr H expressed the view that the father’s risk of inappropriate sexual behaviour towards adolescent girls is increased above that of the general male population of his age, on the basis of a number of allegations made against him from more than one alleged victim and previous criminal charges, albeit not resulting in conviction. Such a pattern would suggest that caution would be advisable in allowing unsupervised access to females under the age of 16 years. Dr H’s view was that it was insightless for the father to continue to press for unsupervised time with female children and adolescents, if only because of the risk of potential future allegations. The more insightful approach would be to avoid unsupervised contact as a protective measure for everybody involved.
Ultimately in submissions made on his own behalf, the father conceded that supervised time would be the right course for him and the child.
The applications
The application of the mother is the Further Amended Initiating Application filed 11 September 2013. In summary she seeks orders:
(1)That the child live with her;
(2)That she have sole parental responsibility, provided that she keeps the father informed of decision making in respect to long term issues;
(3)That there be communication between the father and the child, but that the father spend no time with the child;
(4)That in the alternative, she proposes supervised time at a contact centre.
The mother has also filed two Notices of Child Abuse in respect of allegations made by the mother on behalf of her daughter G, in respect of alleged conduct by the father on occasions between May 2008 and April 2009. Serious allegations made by G are set out by her mother, on G’s behalf, of conduct amounting to sexual assault, even rape.[24]
[24]Subpoena bundle p 16
The application of the father is contained in his Response to Initiating Application filed with leave on 4 September 2014. The father had not filed his Response and affidavit as directed, however he had served them on the other parties and accordingly was given leave to file. The orders sought by the father are:
(1)Shared parental responsibility for the child;
(2)Time between himself and the child every second weekend, half school holidays and at other special times.
The evidence
The parties relied on the following documents:
Mother:
a)Mother’s affidavits filed 04/06/2009, 10/11/2010 and 18/10/2013;
Father:
b)Father’s affidavits filed 03/08/2009, 02/12/2010 and 04/09/2014;
c)A proposed affidavit by the father’s current partner DH was marked as an Exhibit 2 and leave was given for her to give evidence;
Reports:
d)Expert Report Ms Q dated 2 November 2009;
e)CAPIA dated 17 March 2010;
f)Magellan Report dated 2 November 2010;
g)Family Report dated 3 November 2010;
h)Expert Report Dr H dated 2 December 2010;
i)Family Report dated 30 March 2012;
j)Magellan Report dated 14 January 2013;
k)Family Report dated 9 August 2013;
l)Expert Report Dr H dated 11 December 2013;
m)Family Report dated 7 July 2014;
n)Expert Report Dr H dated 3 September 2014.
The mother
I formed the very clear impression of the mother that she had always wanted the support and assistance of the father and had hoped that there would be regular easy contact in the way that took place soon after separation.
She was shocked when G told her about the father’s conduct and she acted protectively of her daughter. Even after all that followed, the mother was hopeful that a relationship between the father and the subject child could safely develop.
The allegations by the young teenage daughter of a subsequent partner of the father were immensely upsetting for the mother, who had begun to hope that the strain and distress caused by the criminal trial would diminish and that it would be safe to allow the subject child to spend time with the father. She had begun to do that.
The mother stopped the visits between the father and the subject child and formed a resolute attitude to supervision being necessary.
Despite all that she has been through over the past five years, there were no signs that any of her actions have been directed at the father, but have always had her children as the central focus.
I am confident that the mother will if it is possible, permit and encourage the child to enjoy time with the father, in the presence of a private supervisor and with his partner and her two children, if that relationship endures.
The father
The father found it very difficult to understand why, once there was a nolle prosequi in the criminal trial that his time with the child did not resume immediately on an unsupervised basis. He felt vindicated and cleared and was surprised and disappointed to find that the allegations of G were taken into account on the civil standard in this Court. To his credit, the father was complimentary about the mother. He described her as a good mother, looking after the child well.
The father has enjoyed several relationships since separation from the mother, of varying lengths.
At times he was cavalier about the need for his participation in interviews for reports in these proceedings.
Unfortunately the father has shown some of the Court documents to the teenage daughter of his current partner; he did so with the express intention of explaining to her what he had been accused of in the past and to give her advice about what to do if she ever felt uncomfortable around him.
One consequence of that is that young woman, now a young adult, is capable of providing information to the subject child in an attempt to persuade her that the father is innocent of wrong-doing. It is apparent that she, as well as her mother, hold that view. Indeed the father proposed his young teenage step-daughter as a supervisor for when the child spent time with him.
It reflected immaturity in the father that he would consider such an arrangement suitable.
Complaint by Ms H-G’s daughter
The father was asked about the incident in 2011 when a complaint was made about him by the daughter Ms H-G (his previous partner). The father gave evidence of an incident where he was sitting outside the home, eight to 12 feet from the window of the bathroom, where this young woman was having a shower; he was clearly recollecting a particular event. The matter was raised by the young person with her mother, who raised it with the Department of Family and Community Services (the Department). Of concern is the fact that in speaking to a Departmental officer, the young woman said that at the time, when she came out of the bathroom, having seen what looked like a camera flash, when she challenged the father, he was described as “grovelling for me to let it [the incident] go”.
I am certainly not in a position to make a finding about misconduct and am not asked to. However an incident of some sort did take place, giving rise to a complaint about the behaviour of the father.
The father’s current partner
The father’s partner is aged 41; her almost 18 year old daughter is the product of an unhappy relationship with a man who suffered serious mental illness. That relationship was terminated. Her younger child, a five year old boy, has a relationship with his father, which was described as working well.
The father’s partner was not dismissive of what she had learned about the allegations about the father. She had read the criminal trial documents and all of the Family Court documents. She had joined with the father in discussing the matter with her teenage daughter (aged14 at the time of the discussion).
She conceded that she did not believe the father had done anything wrong to his former step-daughter and that that had also been the reaction of her own daughter, on being told of the offences alleged against him. Nothing the father had said or done had given her any reason to believe he was capable of such a thing.
Of more concern was her rather critical attitude to the mother of the young woman who made the subsequent complaint, “Why not go to the police 30 minutes later, that’s what I would have done.” Further, the fact that the police took no action after the complaint was referred caused the witness to reject the possibility of any wrong doing by the father.
I formed the impression that this relationship with the father is very important to the father’s partner. He is the father of her youngest child. She too was prepared to consider her own teenage daughter acting as a supervisor. These are all matters of concern.
However, I had the strong impression that the father’s partner is a protective mother of her own children and if she were willing to undergo training as a supervisor and is prepared to put herself in a position of authority over her partner, she could be a valuable support to the child in enabling her to have an ongoing relationship. Ultimately, that will be a matter for the mother.
The issues
There is no dispute that the child has a meaningful relationship with the father; she loves him, she enjoys spending time with him and she would like to see him more often.
The issue is whether there is an unacceptable risk of harm and/or abuse to the child in the care of the father. If there is such a risk, the next issue is whether it is in the best interests of the child to spend time and communicate with the father.
The final issue that arises is, if time and communication should take place, how that time should happen and in what circumstances.
The law
The objects of the Act in relation to parenting Orders are to ensure that:
a)Children have the benefit of both of their parents having a meaningful involvement in their lives to the maximum extent consistent with their best interests;
b)Children are protected from physical and psychological harm;
c)Children receive adequate and proper parenting to help them achieve their full potential;
d)Parents fulfil their duties and meet their responsibilities concerning the care welfare and development of their children.
These are applications for parenting orders pursuant to s 64B(2) of the Family Law Act 1975 (Cth) (‘the Act’). In deciding whether to make a particular parenting order in relation to a child, a Court must have regard to the best interests of the child as the paramount consideration. The way a Court determines what is in a child’s best interests is by considering the matters set out in s 60CC(2) and (3) of the Act.
There is also a presumption when making a parenting order; that it is in the best interests of the child for the parents to have equal shared parental responsibility for the child. The presumption may be rebutted by evidence that equal sharing of parental responsibility would not be in the best interests of the child in question.
I have contemplated the issues of parental responsibility, residence, time to be spent and communication between child and parent as well as any other specific issues.
I have considered the mandatory factors and conclude that the following matters are relevant to the best interests of these children.
Primary considerations
Section 60CC(2)(a) - the benefit to the child of having a meaningful relationship with both of the child’s parents
The child does have a meaningful relationship with both of her parents. Despite her parents having separated before her fourth birthday, her relationship with each of them continued.
When events were revealed relating to her elder sister G, the mother protected the child from any knowledge of the allegations and the father maintained his interest.
Section 60CC(2)(b) - the need to protect the child from physical or psychological harm from being subjected or exposed to abuse or family violence
There is a need to protect the child from psychological harm; there being a risk of exposure to abuse. That risk has been difficult to quantify.
There is no evidence or inference that the child has been abused or harmed in any way by the father. However the serious nature of the allegations made by the child’s step-sister, maintained over time, cannot be disregarded. I accept that the detail, carefully elicited over time by a family consultant and an experienced police officer, was not known to the mother. G herself told her mother as much, as she did with an expressed intention to protect the younger children.
There was a subsequent allegation of another teenage girl, the daughter of a new partner of the father’s.
The assessment of Dr H is that there is an elevated level of risk from the father in those circumstances, aggravated by his pattern of taking up relationships with women with teenage daughters, and is of sufficient concern to justify the continuation of a cautious and conservative approach to this child’s safety.
Additional considerations
Section 60CC(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
The child presented as a quiet and polite child, who did not have a lot to say on the most recent interview; the likely explanation for the latter being the number of times she has been interviewed in the past about her family and her relationship with the father. Those interviews have certainly been numerous.
Her thoughts on the topic of the father were maybe she could talk to him once a week, so that she would have lots to talk about. There have been times when she has apparently been at a loss for what to discuss with the father on the telephone in the past. She also reported that she missed seeing the father and did not know why she could not see him.
The child is aged 10 and there is nothing to suggest that she is not as mature as her chronological age, or has any deficiency in her level of understanding. However, in the special circumstances of this case, very little weight can be given to her views. She is fortunately unaware of the turmoil in her family; she has not known that her elder step-sister, G, has made serious allegations of sexual abuse against the father; she has been unaware of a criminal trial where both her step-sister and the father were witnesses; she has been unaware of allegations by her oldest step-sister, R, of some misconduct by the father when she was an infant, nor of an allegation by a teenage girl unknown to the child.
She has been carefully protected by the mother from the impact on her of what has happened to her two daughters and the steps she has taken to ensure the safety of her youngest daughter. She is unaware of why she is not able to freely and easily see the father, his current partner and her two children in the way she would like to.
I do give some weight to her view that she would like to speak to the father once per week, to ensure that she could be available to speak to him and that she would have sufficient things to discuss. I also take into account, in a general way, that she has a positive wish to spend more time with the father.
Section 60CC(3)(b) - the nature of the relationship of the child with each of their parents and other persons
The child has her most important bond with the mother; she has close relationships with her brother and two older sisters and perhaps extended family in New Zealand. She has a bond and an important relationship with the father and perhaps members of his family in New Zealand.
Section 60CC(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, to spend time with the child and to communicate with the child
Post-separation, the parties arranged, without difficulty, for the child and two of the mother’s older children to regularly spend time with the father on quite a flexible basis. Having seen and heard from both the parents, my impression accords with that of the family consultant, where she said this:
I certainly gained the impression from [the mother] that this was not a fight she wished to be having with [the father] and that she would like nothing more than to know that the subject child could enjoy a happy safe and ongoing relationship with her father.
When the mother was told by her daughter G that the father had been touching and dealing with her in a sexual way that had frightened, upset and physically hurt her, the mother was profoundly confronted by two things; first that it had taken several months for G to reveal those things to her and next, during that period her youngest child, the subject child in these proceedings, had been having regular weekend and holiday time with the father. The mother acted promptly to report matters and protect G and to make decisions on the basis of expert advice, designed to protect the subject child.
The father was interviewed by police; he has always denied the allegations of wrong-doing in relation to G; he went to a criminal trial which did not proceed to conclusion and he thereafter pursued through the Courts the opportunity to spend time and communicate with the child.
Section 60CC(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, or any other child or other person
The child has been spending time with the father in a contact centre for four years; she is now aged 10. It is likely she would at least initially be pleased with a change away from the contact centre. However, it is highly likely that the mother would be anxious. It is uncertain whether the mother would be able to conceal her anxiety in those circumstances from the child. One or more of her older siblings may also not be able to conceal their concern for their younger sister, or the reasons for it. All those things are unknown.
However, the mother is supportive of ongoing supervised time and by the conclusion of the trial, the father himself expressed a different view. He said he saw the need for supervision and was willing to have supervision within his home. His view was that his current partner would be a suitable supervisor, being a strong minded individual, who would not hesitate to protect the child irrespective of his views.
There should be provision for the option of supervision outside a contact centre so that more normal family experiences can happen involving the child with the father and his family. The order is designed in such a way that the father’s current partner is not excluded from undergoing training as a supervisor and taking up that role if she wishes and the mother agrees to her doing so.
The mother would need to have the opportunity to satisfy herself that whoever the proposed supervisor was, the father’s partner or somebody else, that they were suitable and had been trained before such contact outside a centre began.
Section 60CC(3)(e) - the practical difficulty and expense of a child spending time with and communicating with a parent
There will be some expense associated with supervised time and in the event that there is a privately trained supervisor, that may be a considerable expense. However the cost of that supervision should be covered by the father in circumstances where he has not made a significant financial contribution to the child post-separation.
It will therefore be a matter for him to regulate the number of supervised visits which take place on that private basis of supervision.
Section 60CC(3)(f) - the capacity of the child’s parents and any other person to provide for the needs of the child, including emotional and intellectual needs
The mother has the capacity to meet the needs of the child, including her emotional and intellectual needs. She has supported, in extremely difficult circumstances, the need of the child to enjoy a relationship, to the extent that was possible, with the father. She has shown her ability to be protective of her older children and of the subject child. The child is apparently developing well, progressing at school academically and socially.
The father has been more focused on his need to maintain his relationship with the child than on considering the impact on both her and her siblings of the allegations made about him, irrespective of whether or not they are true. He did not appear to have considered the restraint that all three of the older children have shown in protecting their younger sister from that knowledge and the impact on the child of the information being delivered to her, if that were to happen.
There is no doubt that the father wishes to spend time with the child and that his light-hearted approach to life and his enjoyment of outside activities would be enjoyable for the child. The father has understood that the child’s main source of stability is the mother and that her three older siblings are important to her.
Section 60CC(3)(g) - the maturity, sex, lifestyle and background of the child and either of their parents and any other characteristics of the child that the court thinks are relevant
The child is a 10 year old girl who is doing well and, other than wondering why she is not allowed to spend more time with the father, has no expressed concerns.
Section 60CC(3)(i) - the attitude to the child, and to the responsibility of parenthood, demonstrated by each of the child’s parents
The parties originally had a private child support agreement which saw the father paying $150 per fortnight for the child’s child care fees. When time between the child and the father was stopped, the father ceased making those payments.
Subsequently there was a child support assessment which originally saw the father assessed as making no contribution. The mother has worked and supported the child since separation.
The father has been uneven in his acceptance of his obligation to meet the child’s financial needs.
Section 60CC(3)(j) - any family violence involving the child or a member of the child’s family
There is no family violence order involving the child or any member of her family. There has of course been a criminal trial involving the child’s step-sister and the father.
Section 60CC(3)(l) - whether it would be preferable to make the order that would be least likely to lead to the institution of future proceedings in relation to the child
In order to obviate future proceedings, there needs to be provision for the child to have more natural time with the father, albeit supervised, to maintain the relationship until the child reaches young adulthood and can make her own assessment of the relationship she wishes to have with the father thereafter.
A regular weekly telephone call and a minimum monthly visit will be adequate for the child to maintain knowledge of the father and to be reassured that he maintains his interest in her.
If it is the case that the parties agree to adequately trained supervisors to enable more regular time and experiences for the child inside with his family and on outings out and about, then the relationship will be a deeper and more satisfying one for the child, whilst continuing to be safe.
Section 60CC(3)(m) - any other fact or circumstance that the court thinks is relevant
On 18 September 2009 the proceedings were transferred to the Family Court and orders made preventing the parents from removing the children from Australia. The mother seeks the discharge of that order.
The mother would like to be able to freely travel to New Zealand with the child, not only to visit family herself, but to ensure that the child grows up knowing her extended family members in that country. There is obvious benefit to the child in that happening.
The mother, as the parent with sole parental responsibility, should hold the child’s passport, but the father should always know of those trips and provision is made in the order for a passport to be obtained, held by the mother and used for overseas travel. Previous orders restraining such travel are discharged.
I certify that the preceding eighty-eight (88) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 5 December 2014.
Associate:
Date: 5 December 2014
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