Paedophile loses appeal against no communication
- The appellant is the father of, relevantly, three children: a girl C, now aged 16, and twin boys, D and E, now aged 12. On 21 July 2015, Berman J made parenting orders, the relevant effect of which was to exclude the father from having parental responsibility for the children, and to preclude him from communicating with them by any means. From those orders the father appeals.
- At the time the orders were made, the father was serving an 18 year prison sentence, with a non-parole period of 13 years, for a number of sexual offences. He will not be released earlier than May 2025. The offences were of the most vile and serious kind. They included performing cunnilingus on his two year old child. Significant to the appellant’s contention before the trial judge that he should receive photographs of the children, his criminal behaviour included him filming himself engaging in this abhorrent activity, as well as offences involving the taking of sexual photographs of that child and his step-children.
- At the time of his Honour’s orders, the then-15-year-old C had not seen her father for about seven years, and the twins, who were aged 11 at trial, had not seen their father for five years. That circumstance arose through his incarceration, first in remand and subsequently post-sentence, and by reason of orders of the court made in consequence.
- Cronin J had made interim orders permitting communication through the exchange of letters, gifts and the like at a time when, as the trial judge observed, the appellant “professed his innocence” and when “the presentation of the father was to deny his guilt and to assert that without maintaining a relationship by the ability to communicate with the children, they would be irrevocably alienated from him”.
- Some nine weeks later, the appellant pleaded guilty to all charges laid against him.
- On 7 February 2013, Cronin J discharged his earlier orders and made orders the effect of which was to restrain the appellant from contacting the children. In June 2014, the father commenced the instant proceedings.
- For the reasons that follow, I am of the view that the appeal is entirely without merit.
The Rice & Asplund Issue and the Trial Judge’s Approach
- The proceedings before his Honour were the culmination of about 10 years of litigation involving these parties and their children. A number of parenting orders had been made, the latest of which was the order made by Cronin J on 7 February 2013, to which reference has just been made. As a consequence of those orders the instant application by the father confronted the “rule in Rice & Asplund” necessitating the father establishing a material change of circumstances so as to vary the existing order. Although a consideration of “the rule” can be, and very frequently is, determined as a preliminary issue prior to the court embarking upon a consideration of the merits of the substantive parenting orders sought, it need not be.
- Properly consistent with those principles, his Honour embarked upon a consideration of the evidence before addressing the application of “the rule”. When that approach is adopted, issues relevant directly to whether it is in the best interests of the children for the proceedings to continue and issues directly relevant to substantive orders that are said to best meet the children’s best interests, become, as Warnick J described it, “intertwined” and, again as his Honour observed, “may cause the threshold question to fade completely away”. As I apprehend it, this is the point made by his Honour at  of the reasons.
- Having referred to that issue, his Honour said:
- I find that there are no changes in the circumstances of the children which would warrant a reconsideration of the parenting orders already in place.
- The father has not seen the children for between five and seven years and there is little or no relationship that remains. Moreover, the only significant change has been the father’s conviction for serious child related offences which could not be said [to] enhance his case, but if anything would lend weight to the position that there should be no contact or communication between the father and the children.
- I do not accede to the father’s submissions that what is being sought is a small alteration which required only an enquiry of narrow compass. The Rule in Rice & Asplund (supra) requires a consideration whether in all the circumstances it is in the best interests of the children to enable a reconsideration of the parenting arrangements to take place. I do not consider that such an enquiry should occur.
- That conclusion might have led to an order that the father’s application be dismissed, thereby leaving as operative the orders which the circumstances had been found to not warrant changing. However, his Honour did not make that order, instead making substantive parenting orders to the effect earlier described.
- Those orders emanated from what his Honour said immediately following the determination just quoted:
- If however I am wrong in the application of the Rule in Rice & Asplund (supra) and the consequential determination arising therefrom, I find that the father presents an unacceptable risk to the children in terms of their psychological and emotional wellbeing and to the extent that the orders the father seeks involve the provision of photographs, school reports and other documents, I consider that such an outcome would expose the children to an unacceptable risk of physical harm.
- The appellant’s challenge is directed to the findings made by his Honour when directing himself to the substantive merits of the father’s case for substantive parenting orders. In those circumstances, no more need be said about the application of “the rule in Rice & Asplund” or any orders that might have resulted from his Honour’s determination in respect of it.
The Appellant’s Grounds of Appeal
- The appellant prepared his own material and represented himself (via telephone link) before us. I consider that his grounds of appeal should be quoted:
- The trial Judge erred by not enforcing orders 5 and 6, made on 16 December 2014 by Bennett J that [C] born [in] 2000, [D] and [E] born [in] 2004 be interviewed by the family consultant and his Honour further erred by not providing the children with the opportunity to express their views pursuant to s.60CC(3)(a) of the Family Law Act.
- The trial Judge erred in failing to conduct a sufficient assessment of unacceptable risk, having made that finding at paragraph 224 of psychological risk.
- The trial Judge erred as to the process required for determination of unacceptability of risk and the weighing and evaluation of evidence required for same.
- The trial Judge erred in his finding at paragraph 228, that there is no relationship between the children and the father and did so without any corroborating evidence.
- The trial Judge erred in finding a risk of psychological harm to the children and did so without any corroborating evidence or a psychological report containing a clinical assessment of the children.
- The trial Judge erred, by not considering options for the provision of school report cards and photographs which would ensure the children’s safety from the risk of physical harm.
- The trial Judge erred by not considering section 140 of the Evidence Act 1995 (Cth).
The Trial Judge’s Assessment of Risk
- The appellant’s challenges are, in effect, a repetition of issues agitated before his Honour which were determined adversely to him.
- The appellant contends that his Honour should have directed that the children’s views be ascertained within a Family Report and that his Honour could not, or should not, have concluded that communication with the children in the manner sought presented an unacceptable risk of harm to the children, without first ascertaining their views. Separate challenges centre on the assertion that a finding of unacceptable risk of harm to the children was not open to the trial judge.
- His Honour recorded the orders sought by the appellant, relevant to this appeal as follows:
(1) That the father be at liberty to communicate by telephone with C, D and E each Saturday between the hours of 9am to 10.30am and the mother to do all things necessary to facilitate the children receiving those calls and to keep the father advised of a telephone number on which he can telephone the children.
(2) That the mother not interfere or place any time restrictions or any other conditions on the children receiving telephone calls.
(3) That the father be at liberty to send letters, cards and small gifts to the children and for the mother to pass the letters, cards and gifts to the children unopened.
(4) That the mother keep the father advised in writing of the residential address of the children, school or schools at which they attend and to advise of any significant illness or accident suffered by the children.
(5) That the children’s paternal grandmother and paternal aunt and their cousins be at liberty to communicate with C, D and E by email, telephone and through social media internet sites and that the mother keep the paternal aunt advised of the children’s email address and phone numbers on which they can be contacted.
(6) That the mother be restrained from imposing any restrictions on the children contacting any of the family members.
(7) That the mother be declared a vexatious litigant and prohibited from commencing any further applications without leave of the Court.
- The orders sought in the appellant’s filed application below, did not specifically refer to him receiving photographs of the children. However, his written summary of argument before the trial judge sought orders to that effect. In addition, his Honour recorded that “[u]nder cross examination by counsel for the ICL, the father extended the scope of his communication with the children to include audio visual contact”.
- Plainly enough, the nature of the orders sought below by the appellant, and the circumstance that the appellant will not be released from gaol until the children are respectively about 25 and 21, give important context against which any finding that those orders represent an unacceptable risk of harm to the children should be judged. His Honour explicitly recognised that very point. After referring in detail to the arguments advanced by the appellant, his Honour said that “whilst it is axiomatic that while the father remains in prison he poses no physical risk to the children, it is the risk of psychological harm that looms large”.
- In summarising his conclusions, his Honour said:
- The real issue though is the risk of psychological harm to the children. Whilst it is obviously unknown, I find that the risk is real and that the evidence of the family consultant is compelling. The children, according to the mother, present with a range of difficulties and developmental issues but also substantial emotional fragility.
- The father’s position can be seen summarised by his Honour in the following passages of the reasons:
- The father views his current incarceration as a positive feature in that unlike other cases, the Court does not need to be concerned that the children’s lives will be adversely disrupted. The father argues that the children will continue to live with their mother, they will continue to attend their school and see their friends.
- The father’s clear position is that he has not abused C, D and E and the implication is that in some way his conduct involving other children should be quarantined from any consideration.
- It would seem implicit in the father’s position that the Court should ignore his criminal conduct, if for no other reason than the very nature of his incarceration removes any risk of sexual abuse “occurring as a matter of practical reality”. Put simply, the father seeks phone contact and that he be permitted to send letters, cards and gifts. He considers his orders as benign and have the advantage of promoting and maintaining a meaningful relationship with his children.
- The appellant’s desire to ignore his criminal conduct can be seen manifested in his case being redolent of the benefit for him in having a relationship of the type he sought, but silent on the benefits for the children in any such relationship and orders.
- The appellant’s assertions that there was no proper evidentiary foundation for his Honour’s ultimate conclusion that the orders sought presented a risk of psychological harm to the children or that his Honour erred in his approach to that question cannot, in my view, be sustained. In particular, his assertion that his Honour’s findings were based overwhelmingly on “the hearsay evidence of the mother” should be rejected.
- Contrary to the appellant’s assertions, his Honour’s conclusion as to risk emanated from findings based on evidence which can be collated conveniently into three categories, noting that, of course, evidence relevant to each overlaps:
- The nature, extent and context of the appellant’s criminal sexual behaviour;
- The opinion evidence of the family consultant and the father’s lack of insight into the impact of his offending behaviour and into the needs of the children more generally. There is no challenge to the foundations for that opinion evidence, save that the appellant contends centrally that the weight attached to those opinions suffers fatally from not being informed by the children’s views; and
- The children’s lack of knowledge of the father’s repugnant sexual activity, and in the case of the twins, the fact that he is in gaol, and the potential detrimental impact upon them of acquiring that knowledge.
The Nature, Extent and Context of the Appellant’s Criminal Sexual Conduct
- The nature and extent of the appellant’s abhorrent criminal behaviour and the context in which it occurred was clearly relevant to his Honour’s assessment of the risk of psychological harm to the children posed by the orders. It is important to record the salient features of that behaviour and his Honour’s commensurate findings. His Honour did so conveniently (and properly – see s 69ZX(3) of the Family Law Act 1975 (Cth) (“the Act”)) by reference to the sentencing remarks of Bennett J in the District Court of New South Wales Criminal Jurisdiction.
- In particular at  of the reasons his Honour quotes these remarks of the sentencing judge:
[Paragraph of Sentencing Remarks omitted for publication purposes]
The summary of facts does not include a feature of the child’s response to the offender. There was no sign of resistance from her. She was completely compliant and there did not appear to be any instruction given to her. She was responsive to the offender in her position on the bed as he came to her in the first sequence and as he lifted her on top of him and continued with her face proximate to his penis, which he masturbated to the point of ejaculation. This I infer from his use of the towel to wipe the penis. When he finished with the child she sat on the bed and put about her a robe partially covering her young body as the offender kissed her lips, to which she responded. It is my perception that she contemporaneously kissed him in return. Her responsive presentation was as a mature woman in an act of consensual lovemaking with further affection after the coupling. She was as if an adult as she placed the robe about her and responded to his kiss.
To see a child of such tender years behave so with this man leaves me with no conclusion other than her relationship with her father had been sexualised to the point where she was a responsive participant in this sexual encounter. It is of course not possible how [sic] the offender groomed her to this point, or over what time, or the number of occasions that might have preceded this. I am satisfied beyond any doubt however that this was not an aberrant or isolated event with this child.
- It should not be forgotten, that not only did the appellant commit a sexual offence of the most heinous kind against his own two year old daughter, but he also filmed himself doing so.
- Other offences of which the father was convicted involved him taking repugnant photographs of the father’s child and his step-children. Of those offences the trial judge observed:
86. The short summary of the particulars of the offending is that following the examination of the hard drive of the computer, a video was revealed of L, B and M naked and showering in the bathroom with the vision having been captured by a camera secreted in the room.
- Counts 4 and 5 involve the use of a child to make child abuse material and an act of indecent assault against a child namely K.
- The particulars of these offenses involve the vision of K in the bath with her vagina depicted and exposed directly to the camera with the father’s hand parting her labia.
- Count 6 and 7 involve similar charges but this time in respect of the child L. It is to be remembered that L alleged the father had entered her bedroom, lifted the covers and had taken a photograph of her genitals. The father denied the allegation. There is an unfortunate coincidence between this allegation that occurred on 1 October 2010 and the earlier allegation of L where she alleged a similar incident but was not believed.
- Following an examination of a laptop computer an image of L’s vagina was revealed and it was this complaint by L which ultimately brought the father to the notice of the Police.
- Offending involving specifically photographs of the abuse of children was not confined to the appellant’s own child and step-children. The trial judge recorded:
- As part of the information obtained from the computer hard drive, there were 2801 child abuse pictures and 36 child abuse videos.
- One of the videos involves the step-daughter of the father M naked and entering the shower inside the [Town B] home. There were others similar to this vision.
- Ten of the images were categorised by his Honour at a severity of ten on the COPINE scale in that they depicted a naked female aged 12 to 13 years old “with her vagina and breast exposed, blindfolded, ankles bound to thighs, hands bound and chained to a wall”.
- There were other images involving young children being tortured with rope around their neck, barbwire around their waist, pegs attached to nipples with weights in order to place tension on the nipples and images of children of the age between 8 and 12 years old with their faces covered with a bag and their breasts tied.
- Other images depict a female aged 6 to 8 years old with her mouth bound, hands bound behind her back tied at the knees and in a standing position. Visible are scratches and cuts across her abdomen.
- Further images are of penile penetration of children 6 to 8 years of age.
The Offences in the Context of Family Court Proceedings
- Reference has already been made to the appellant’s “protestations of innocence” during the proceedings, prior to the trial before his Honour. In addition, his Honour records the important consideration that:
- Not surprisingly, the father relies heavily on [a 2008] report and the purportedly positive observations of his time with D and E at [the contact centre]. It seems however that the father’s assessment is superficial and ignores the very real possibility that at the time he was engaging with D and E, he was involved in the most serious and horrific abuse of Ms P’s children and [his child] K together with the involvement, viewing and accessing of child pornography. The focus and genre of the materials preferred by the father involved children depicted as being tortured.
- The father was engaged in proceedings in the court in respect of the children, the subject of his proven abuse, and proceedings in the court in respect of the subject children. In each he contended that he had not engaged in sexual abuse of any child. That was a lie.
- His Honour observed at :
It is a chilling acknowledgment by the father that from November 2010 until his arrest in 2011, the child K was in a shared-care arrangement between he and K’s mother. It is recorded that the father could not identify any concern in relation to the arrangement and was dismissive of the topic. The father has appealed a decision that he have no contact with K. He is not able to understand why that should be the case.
The Family Consultant’s Evidence and the Appellant’s Lack of Insight
- His Honour placed significant reliance upon the opinions of the family consultant who provided a report in the proceedings.
- The appellant did not provide this Court with a transcript of the proceedings before his Honour. However, as recorded in his Honour’s reasons, the cross-examination of the family consultant by the father, including his references within that cross-examination to a report of his interactions with the children in a supervised setting some seven years previously, only served to render more cogent the opinions of the family consultant.
- His Honour observed that, during the interview with the family consultant the father was asked to consider K’s emotional response to his offending “and his answer was that it was a stupid thing that he had done, he expressed no remorse or consideration for his victims”. His Honour accepted the opinion of the family consultant that “the father lacks empathy, has no remorse and seems unable to accept accountability for his actions”.
- Similarly, his Honour accepted the family consultant’s opinion that:
…the father lacked insight into the children, their individual needs or their wishes. He was considered to be self-centred in his own desires and it was noted the peculiar presentation of the father by his lack of engagement with the children described by the family consultant as:-
His utilitarian approach [is] devoid of empathy and the father [is] neither attuned to the needs of his children or having the capacity to hold their needs in mind as his reflex position is the promotion of his own arguments and issues.
And the opinion that the father was:
…a rigid thinker, holding views dogmatically and tenaciously displaying difficulty in incorporating alternative considerations. He is highly selective and repetitive with the information he reports and correspondingly he actively deflects questions which may present him with difficulties. The father cannot provide insightful of considered views, but presents a well-worn sequence of ideas that he repeatedly tracks and retraces.
- As an important example of each, his Honour found that the appellant “could not consider what process could be put in place to repair and reinstate the children’s well-being if they suffered psychological trauma arising from the orders he seeks”.
- A yet more disturbing example comes from the father’s evidence as to his perception of the emotional impact of his conduct to his then two year old daughter. His Honour records:
- Asked to consider K’s emotional response to this event, the father despite repeated questioning could not in any manner connect with any sense that K would have felt or thought anything about this event. The father’s commentary was “…it was a one off event…I am hoping she was so young she will have no recollection”.
(Emphasis in original)
The Children’s State of Knowledge
- The child C knows her father is in gaol but has not been told the reason why or been apprised of the nature of the offences he has admitted to. She has herself, some years ago, made allegations of sexually improper behaviour by the appellant toward her. He denied that conduct and continues to do so, as he does any sexual behaviour toward his twin boys.
- The mother acknowledged to his Honour that at some point C would need to be told the reason her father is in gaol, she says that lying to her daughter is not acceptable to her. However, the mother gave evidence that C was not yet ready for that explanation. The twins have not been told that their father is in gaol, nor have they otherwise been told of their father’s criminal behaviour.
- His Honour found:
- The father considered it important that C, D and E be told of his situation but he was not able to consider the effect on the children or that they might experience severe emotional distress or psychological harm or damage.
- Despite this unchallenged finding, the father told this Court that he considered that it should be left to the mooted interviewing professional to decide how, and in what detail, the children should be told of his offending and his imprisonment.
- His Honour found:
- The mother was uncertain how the children would process the information relating to the father’s predicament. The children, in particular D and E, are fragile. The child E suffers from Asperger’s Syndrome and he has a demonstrated inability to self-regulate his emotions. He cannot express himself or identify issues clearly or carefully and whilst initially they might be curious, the long-term impact on the children should they gain a complete understanding of the father’s offending is uncertain but has the potential to be highly damaging.
- Later in the reasons his Honour returned to this important issue in accepting opinions offered by the family consultant:
- The family consultant accepted the mother’s assessment of C as a young woman and a very troubled person. She found that the child’s reported distress was “consistent with the literature of childhood trauma” and she is plagued by fragments of memory, unexplained behaviours and anguish which are not able to be easily reconciled.
- The suggestion that C should be encouraged to re-enter and re-establish a relationship with the father was considered by the family consultant to be likely to re-traumatise the child and exacerbate self-destructive conduct and behaviours.
- In relation to E and D, it was the opinion of the family consultant that “providing information about their father not only exposes the children to psychological risk, with regards to their developing identity, but grappling with the father’s actions would require them to rethink their relationships, notably with C and their mother…engagement with the father exposes vulnerable children to risk”.
- In relation to the cacophony of litigation promoted by the father, the family consultant was of the view that “the father will continue to use litigation to lay some trail of contact so that ultimately he will engage with the children and the Courts may determine that continuing litigation is not in the best interests of the children”.
- Finally, the family consultant considered that the father’s offending and the manner in which he obtained “sexual pleasure of the expense of small children” is such that the community needs to be protected, but significantly C, E and D remain a part of that community.
(Emphasis in original)
- In a similar vein, his Honour also specifically referred to the cross-examination of the family consultant by counsel for the independent children’s lawyer (“ICL”). I consider the passage quoted by his Honour should be repeated in these reasons:
- Under cross examination by counsel for the ICL the family consultant conceded that in terms of the boys, given their age and state of development “it would be almost impossible for them to understand or contemplate the reasons the father was in gaol. E may never really comprehend the nuances of his father’s offending” and then finally the following exchange is relevant:-
Question: Did you get any indication from the comments made by the father to you during interview that he actually thought through the process of how the information of his incarceration and his offences were going to impact psychologically on each of the children.
Answer: He had not considered it at all in any way, shape or form.
Question: Is it fair to say that as someone who is purporting to be a parent, he lacks any insight whatsoever in relation to the implications of his actions upon his children.
Answer: Yes. I believe in my report I went further and talked about his lack of protectiveness as a parent.
Question: Given circumstances, could the Court have any confidence that any communication that the father would have with the children would be appropriate, given his complete lack of insight, that his communication with the children would be appropriate for the children.
Answer: The Court could not have any confidence that there would be appropriate conversation conducted with the children.
- His Honour concluded:
- So egregious is the father’s offending that it is difficult to understand or contemplate how the children could be appropriately made aware of their father’s circumstances. The matter is made more complex by the knowledge that C, D and E have of the child K the victim of the more disturbing conduct of the father.
- In that respect, the child K is a half-sibling to C, D and E. The other child victims are step-siblings to C, D and E. The matter to which his Honour refers is, in my respectful view, significantly exacerbated by that fact. In my view, his Honour’s conclusion there expressed was well open on the evidence before him, and I respectfully agree with it.
- It goes without saying that parenting orders that have the effect of eliminating any contact or communication between a parent and his children can be seen as exceptional. That must be so given the objects and principles of Part VII of the Act.
- Yet, the making of such an order is, like all parenting orders, guided by a consideration of the best interests of these particular children in their particular circumstances.
- The ramifications for the children in permitting orders of the type sought by the father was properly the focus of his Honour’s inquiry and his Honour’s reasons. In particular, as his Honour made explicit, the question of whether the proposed orders exposed the children to an unacceptable risk of psychological harm was at the forefront of that question as it plainly should have been.
- In my view, there was more than ample evidentiary foundation for the orders made. Nothing to which the appellant has referred in his written or oral submissions persuades me that his Honour took account of any irrelevant considerations, failed to take account of any relevant considerations or otherwise made any error in arriving at his conclusion that the proposed orders exposed the children to an unacceptable risk of psychological harm.
The Failure to Obtain a Report as to the Children’s Views
- Obviously enough, many of the issues just discussed are directly relevant to the issue of obtaining the views of the children, the failure of which is said to be an error by his Honour.
- His Honour considered the father’s application and its attendant application for an adjournment of the trial so as to permit same and delivered separate ex tempore reasons refusing both. His Honour also formally ordered that the application be dismissed. There is no application for leave to appeal that specific order, but as has been seen, a challenge to it is central to the challenge to his Honour’s substantive orders and it is convenient to deal with it in that manner.
- The family consultant provided the following opinions which his Honour records and plainly accepted as important. I consider, with respect, that his Honour was entirely correct in doing so.
- As has been seen, the family consultant addressed specifically the issue of interviewing the children for the purpose of seeking their views and explained why she had chosen not to. With great respect, her reasons are compelling. It is important to record what the family consultant said about that issue as recorded by his Honour:
- At the commencement of the proceedings, the father sought an order that the proceedings be adjourned to enable an assessment to be undertaken which would involve the children and to thereby ascertain their views. The father argues as follows:-
 Under subsection 60B(2) of the Act, the Court will be asked to take into consideration that the children have a right to know and be cared for by both parents. Also that the children have a right to spend time on a regular basis with and communicate on a regular basis with both their parents.
 The orders that I am seeking take these two factors into consideration. It is in the children’s best interests for them to have such contact for the reasons that I have provided above.
 Under subsection 60CC(2) the additional factors that the Court must consider is any views expressed by the children.
 It is unfortunate that the Family Consultant did not interview the children to ascertain their views. Instead she relied upon the mother’s views, which previous Court hearings has proven that the mother has been less than truthful.
 The last time the children’s views were taken into consideration was at the Family Assessment in 2008. [Mr R] accurately recorded the children’s wishes and views. He also accurately recorded the children’s reaction to spending time with me.
 Mr [R] also recorded the strong bond they have with me and noted that C also retains a strong bond despite the long absence in her life.
 The children are now 11 and 15 years of age and it is submitted that the court should [sic] greater weight to their views. The children are at an age where they can separate their emotional attachments from their mother and provide their own views and wishes.
- The father submitted that the assessment by the Family Consultant would be flawed if the children were not interviewed. At paragraph 95 the Family Consultant records the following:-
The father considers it imperative that the children be interviewed, that their views be sought, but he acknowledged that if the children’s views do not align with his beliefs he will still seek further opportunities for contact. It is considered that the father’s continued furrowing into the children’s world is a destabilising mechanism and another method of his reasserting control over the mother. The father reports his “…great relationship with the children,” but he does not comprehend that under the current circumstances there needs to be an adult interpretation of the children’s needs and his assessment of relationships are considered here to be at best doubtful and self-serving.
- Notwithstanding that there was not an order requiring children to be the subject of involvement in the assessment, the further remarks of the Family Consultant are apposite:-
It is to be noted that any benefit of interviewing the children in this matter, however marginal and fraught with difficulties, is obviated by the father’s admission that he will, regardless, persist in his endeavours to have contact with the children.
- Later in the reasons, his Honour returned to the issue and said:
- As previously discussed, the father was highly focussed on whether the children should have been the subject of the assessment. The response of the family consultant is instructive:-
I asked you very directly about what your plans were with regard to this matter and you said you were still considering options. It wasn’t clear necessarily what you were going to do but one of the options which was part of the further discussion was to continue with litigation. You and I had a very clear conversation separating events as to why you are incarcerated, issues that had concerned [sic] while you were incarcerated and how you saw the progress with relation to the children. I was very clear in trying to explore with you whether or not it was absolutely essential that the children be brought into this matter and you were helpful in the sense that you explained to me that if the children’s views did not concur with your expectations you were very likely to proceed with this matter. That’s what you told me and that’s what I put in the report.
- In my view, nothing to which this Court was taken by the appellant suggests that his Honour’s discretion miscarried in deciding that it was not in the children’s best interests for them to be subjected to interviews by a family consultant or, specifically, in failing to ascertain their views as to the orders proposed by the father. We have been taken to no error of principle nor has it been demonstrated, in my view, that his Honour took account of any irrelevant consideration or failed to take account of any relevant consideration.
- The opinion evidence of the family consultant was compelling and nothing put to her by the appellant in cross-examination pointed to any error of approach or any flaw in the bases for the opinions she expressed. Indeed, as I have earlier said, the appellant’s cross-examination of her, as referred to by his Honour, only reinforced the reliability and cogency of the opinions expressed.
- In addition, it seems to me that the appellant’s argument involves an inherent misconception. There is no requirement upon the court to obtain the views of a child – even a child of mature years. The Act makes that clear in terms.
- First, s 60CE provides specifically that “[n]othing in [Part VII] permits the court or any person to require the child to express his or her views in relation to any matter”. Secondly, mandatory principles for conducting child-related proceedings require the court to “consider the needs of the child concerned and the impact that the conduct of the proceedings may have on the child in determining the conduct of the proceedings”. Similarly the court is obliged to conduct the proceedings in a way that will safeguard the child or children concerned from, relevantly, “abuse” which such expression include causing the child to “suffer serious psychological harm”.
- That in my view, is precisely what his Honour did and it is precisely those matters which the family consultant posited at the centre of her relevant opinions.
- Finally, as his Honour correctly said, the father had an opportunity to give evidence in chief as to his perception of the views of the children, had the opportunity to cross-examine the mother and the family consultant about that issue and had the opportunity, specifically, to test that issue by reference to evidence he considered relevant, namely the report of, in particular, Mr R, as to his observations made some seven years previously of the interaction between the father and the children in a supervised setting.
- The father’s submissions themselves underscore the very point made by the family consultant and his Honour: his narcissism and lack of insight result in his considering the issue through the prism of his own needs and blind him to the needs of the children and the potential impact upon them.
- No error is demonstrated by reason of his Honour not directing that the views of the children be obtained or in assessing risk of harm without reference to them.
- I would dismiss the appeal.
- Understandably, no order for costs is sought by the self-represented mother and I would formally order that there be no order as to costs.
- I agree that this appeal ought be dismissed and with the orders proposed by Murphy J and his Honour’s reasons for those orders.