Oscar & Delaware 2012. FAMCA 211.
The father had arrived in Australia on a visitor’s visa and sought a visa for permanent residency. The father had been in relationships with two women (Ms A & Ms D) within a 2 year period and had fathered two children (B aged 3.5 years and Z) with these women. The father had not seen his daughter B for 3 years after leaving the home when she was aged 6 months (contact limited involvement).
The first mother Ms A alleged that the father had shown family violence as he had been physically and sexually violent towards her, had been controlling, had been physically and emotionally abusive towards Z, had made threats to abduct Z, had refused to accept advice about parenting and had ignored concerns about the safety of their child as an infant (personality aggressive). Ms A alleged the father’s actions were directed solely towards meeting his own need to apply for permanent residency (child focused). Ms A considered the father unable to provide a safe, stable and consistent environment, and that the child would be at unacceptable risk of abuse.
The second mother Ms D stated she had been in a relation with the father for 22 months. Ms D alleged that the father exposed their daughter to sexualised behaviour. Ms D submitted that it was not in the best interests of her daughter to have a relationship with the father as the child would be at unacceptable risk of sexual abuse.
The judge noted that a court would not grant access or custody to a parent if that would expose a child to unacceptable risk of sexual abuse. A finding that abuse had occurred often leads to the cessation of relationship between the parent and child. Termination of a parent-child relationship is a course of last resort, with supervised access to guard against possible abuse being a preferred course.
The judge stated that a finding that abuse had occurred can be reached only after a strict application of the onus of proof on the balance of probabilities (burden of proof). Evidence about inexact proofs, indefinite testimony and indirect inferences were insufficient to make a finding of abuse. To test unacceptable risk a judge has to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from ongoing parental access.
The judge cited a Michigan study where 81 professionals were given information about possible abuse and were asked to evaluate whether sexual abuse had occurred, and whether access should be allowed. The study found a wide range of professional opinions, even about the likelihood of re-occurrence of abuse.
A psychiatrist assessed the father as having narcissistic traits that showed in his sense of entitlement, difficulty in managing female relationships, seeing things only from his own perspective, becoming over-bearing when his views were challenged, and thriving on confrontations and being determined to win. The psychiatrist considered the father might be responsive to education about parenting.
The psychiatrist considered that both mothers exhibited high levels of anxiety. The two mothers shared their experiences to a level the father considered amounted to collusion. The psychiatrist saw traits of hysteria in both mothers as evidenced by their styles of communication as they supported each other and reacted emotionally to each other’s stories, where they were dependent on each other (personality emotionally volatile). The psychiatrist recommended that both mothers participate in therapy to manage their parenting, commencing with CBT to address their anxieties, followed by 2 years of psychotherapy (therapy for parent).
The judge found there was evidence of sexualised behaviour by the father including the father kissing the daughter while he was naked, the father sitting the daughter on his knee while both were naked, and the father fondling his penis while standing near the child. The father was a nudist. Ms D reported the father saying that his daughter was like a toy for him to play with, and the child was within his authority (parenting style self centred).
The judge considered that Ms D held implacably entrenched negative views (strong belief) about the father, and did not show goodwill (credit nil). The judge noted that the father did not respect the role of Ms D as the primary carer for their daughter, and that he criticised Ms D when she made their daughter available for an access visit (personality ultra-critical). The judge ruled there was no prospect of mutual shared or co-parenting.
The judge found that both mothers were involved parents who had strong attachment bonds with their daughters, and that both daughters were attached to their mothers.
The judge found that the father displayed a range of bizarre, obsessive, unpredictable and cruel behaviours. The father’s traits made him unlikely to benefit from therapy as he held a strong belief about his own abilities and he was not open to advice. The judge doubted that the father would accept direction even in a supervised context.
The judge found there was no prospect of daughter B having a positive meaningful relationship with her father.
The judge ruled that the father posed an unacceptable risk due to a combination of factors being his sexualised conduct, his physical and emotional abuse of the mothers, his control and domination of the mothers, and his anger and uncontrolled behaviours towards the mothers and the children.
The judge granted sole parental responsibility to the mothers. The judge ruled that the father spend no time with the children, but that the father have an option of structured communication with the children by sending cards and letters that were addressed to by the mothers (restrained from contact).
