Justice Theresa Forgeron, who is based in Sydney with the high court’s family division, ruled she continues to have serious concerns about the father’s behavior and it would not be in the son’s best interest to return him to his father’s care.
“It is a rare and unusual circumstance for a court to deny a joint request of the minister and respondents. This is one such case,” said Forgeron, in a decision released Friday.
In accordance with the rules governing reporting of family cases, the names of the father and the children are prohibited from publication.
The department and the father argued despite Forgeron’s ruling that the father sexually abused a step-daughter over a seven-year period, the son could be placed in his care under provisions that included the father and son live with the father’s mother, the father submit to regular drug testing and that department staff make regular home visits. No criminal charges were ever filed against the father for sexual abuse.
In furthering their argument, the department and father note the step-daughter was a non-biological child while the son is a biological child; the father continues to submit to drug testing and has been deemed to have his alcoholism in remission; the father has completed a host of programing including anger management, conflict resolution, nutrition and healthy relationships, the father consistently attended access visits with his son and that the son has expressed a desire to return with his father.
In her ruling, Forgeron said she could not permit the son’s return to the father’s supervised care.
“A real chance of danger would be created if I agreed to the joint request,” she said.
In citing her reasons for denying the request, Forgeron said she rejects any suggestion abuse would not occur because the son is a biological male.
“The logic of this premise escapes me,” she said.
Also, said the judge, the protection risk does not stem from the father being heterosexual but from his systematic abuse of a vulnerable child, his step-daughter who has a learning disability, for his own pleasure and control.
She said the father manipulatively groomed the step-daughter over seven years to provide him with unlimited sexual favours, including intercourse, while plying her with alcohol and telling her such a relationship was normal because they were not blood relatives.
Forgeron also noted that the protection risk for such abuse was not addressed by any of the services or programming accessed or completed by the father.
“I am unable to draw the inference that the child abuse is caused by alcoholism.”
He judge also referred to the father’s testimony when asked about his drinking. She noted that when asked why he stopped drinking, the father replied he wanted to take a break and that he was spending too much money on alcohol.
When asked if he had any concerns about his behavior while intoxicated, the father said he did not and that drinking usually made him happy go lucky.
As for the other problems in the home, the court said the father deflected responsibility onto the mother.
The son, now in his early teen’s and who has the mental capacity of a seven-year-old, has been in foster case since 2012 after being taken from the home because of concerns over substance and physical abuse and neglect.
The father and son are permitted to have supervised access.