Adena & Harland
[2023] FedCFamC1F 1005
•23 November 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Adena & Harland [2023] FedCFamC1F 1005
File number: SYC 944 of 2022 Judgment of: SCHONELL J Date of judgment: 23 November 2023 Catchwords: FAMILY LAW – PARENTING – Unacceptable risk – Where the father has been convicted of possessing child abuse material – Where it is accepted that the father poses an unacceptable risk of harm to the child – Where the father contended that the risk can be mitigated through supervised time – Where the mother and Independent Children’s Lawyer contended that the risk cannot be mitigated and sought for the father to spend no time with the child – Where the Court is satisfied that the father poses an unacceptable risk even in a supervised setting – Order made for the father to spend no time with the child – Where the Court is satisfied that an injunction under s 68B of the Family Law Act (Cth) for the protection of the mother and child is appropriate – Injunction granted.
FAMILY LAW – COSTS – Where the mother sought costs on the basis that the proceedings arose as a consequence of the father’s conduct – Where the Court is not satisfied that there are circumstances to justify the making of a costs order – Application dismissed.
Legislation: Family Law Act 1975 (Cth) Pt VII, ss 60B, 60CA, 60CC, 61DA, 65DAA, 68B, 102NA, 117 Cases cited: Bondelmonte v Bondelmonte (2017) 259 CLR 662; [2017] HCA 8
Champness & Hanson (2009) FLC 93-407; [2009] FamCAFC 96
Fitzwater v Fitzwater (2019) 60 Fam LR 212; [2019] FamCAFC 251
Godfrey v Sanders (2007) 208 FLR 287; [2007] FamCA 102
Isles & Nelissen (2022) FLC 94-092; [2022] FedCFamC1A 97
Johnson and Page (2007) FLC 93-344; [2007] FamCA 102
M v M (1988) 166 CLR 69; [1988] HCA 68
Mazorski v Albright (2007) 37 Fam LR 518; [2007] FamCA 520
McCall & Clark (2009) FLC 93-405; [2009] FamCAFC 92
Mulvany & Lane (2009) FLC 93-404; [2009] FamCAFC 76
Potter and Potter (2007) FLC 93-326; [2007] FamCA 350
Sigley & Evor (2011) 44 Fam LR 439; [2011] FamCAFC 22
Division: Division 1 First Instance Number of paragraphs: 193 Date of hearing: 7 – 8 November 2023 Place: Sydney Counsel for the Applicant: Ms Wallace Solicitor for the Applicant: Mitchell Family Lawyers Counsel for the Respondent: Mr McMahon Solicitor for the Respondent: Inner West Solicitors Pty Ltd Counsel for the Independent Children's Lawyer: Ms Bromberger Solicitor for the Independent Children's Lawyer: Phillip A Wilkins & Associates ORDERS
SYC 944 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS ADENA
Applicant
AND: MR HARLAND
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
SCHONELL J
DATE OF ORDER:
23 NOVEMBER 2023
THE COURT ORDERS THAT:
1.The respondent father (“the father”) spend no time with the child X.
2.The oral application of the applicant mother (“the mother”) for an order pursuant to s 68B of the Family Law Act 1975 (Cth) (“the Act”) is granted.
3.The father, Mr Harland, is restrained pursuant to s 68B of the Act from doing each of the following until X attains the age of 18 years:
(a)approaching within 50 metres of the mother, Ms Adena;
(b)approaching within 50 metres of X;
(c)approaching within 100 metres of any school at which X is attending from time to time;
(d)approaching within 100 metres of any residential property in which the mother and X are residing from time to time; and
(e)communicating with the mother and/or X by any means, including but not limited to telephone communications, social media and SMS messaging.
4.The mother’s oral application for costs is dismissed.
AND THE COURT NOTES THAT:
A.For the purposes of s 68C of the Act, Order 3 is an order for the personal protection of the mother and X.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Adena & Harland has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
SCHONELL J:
These are proceedings in relation to the parties’ only child X who is currently aged six years.
In 2021, the respondent father (“the father”) was arrested and charged with possession of child abuse material. The father pleaded guilty and in late 2021 was sentenced to a community corrections order. The father’s possession and use of child abuse material has had devasting consequences.
The applicant mother (“the mother”) and the Independent Children’s Lawyer (“the ICL”) contended that the father posed an unacceptable risk of harm to X and the only way to manage that risk was for him to spend no time with X.
The father’s Further Amended Response sought orders that he spend time with X initially for two hours each alternate Saturday, with time progressively increasing over a number of years to ultimately conclude with time each alternate weekend. Time was initially to be supervised by a contact provider and thereafter by the paternal grandmother and/or paternal aunt. However, by the time of the hearing, the father’s mother had passed away and there was no evidence adduced from the alternate supervisor. The father also sought orders that the mother keep the father updated with relevant information in relation to X, including her schooling and health.
On the first morning of the hearing, the father’s counsel advised that the father consented to an order for sole parental responsibility to the mother. With the agreement of all parties, an order was made on 7 November 2023. By the time of submissions, the father’s counsel, without abandoning the orders sought by the father, conceded in essence that supervised identity contact was a viable alternative.
The mother relied upon the following documents:
(1)Amended Initiating Application filed 3 February 2023;
(2)Affidavit of mother filed 29 September 2023;
(3)Affidavit of Ms B filed 11 October 2023; and
(4)Case Outline document.
The father for his part relied upon the following documents:
(1)Further Amended Response to Initiating Application filed 28 September 2023;
(2)Affidavit of father filed 20 October 2023; and
(3)Case Outline document.
Both parties and the ICL referred to the Family Report dated 1 September 2023 prepared by the single expert Dr C (Exhibit 4).
BACKGROUND
The mother was born in 1976 and is currently 47 years of age.
The father was born in 1972 and is currently 51 years of age.
The parties commenced cohabitation in or around 2016, married in 2016, separated on a final basis in or around early 2018 and divorced in 2020.
The parties have one child together, X, who was born in 2017 and is currently 6 years of age.
Both parties deposed to a tumultuous relationship.
The father deposed that throughout the relationship the mother had erratic behaviour and she would become irrational, agitated, and upset quite suddenly. He said that the mother has been diagnosed with a personality disorder. An assessment by Dr D, a psychiatrist, referred to by the single expert in the Family Report recorded that the mother’s “features and history indicate a severe but unspecified personality disorder” (Family Report, paragraph 101). The mother stated in her affidavit that she was not prepared to agree with the diagnosis. No submissions were made as to these issues and in circumstances where the mother is the primary carer of the child, they are only relevant to her capacity to cope with and manage a time order.
The father also deposed that the mother was the perpetrator of family violence against him, which included physical violence. The mother denied this. This issue was not pursued in cross‑examination.
For her part, the mother deposed that the father had overtly sexualised behaviour throughout the relationship, which included sexualised behaviour around X. This is discussed in further detail below.
The mother contended that early on in the relationship in 2016, the father said to her “I want to bend you over the car and pretend you’re my daughter” (emphasis in original). She deposed that she was subsequently advised by E Family Services and F Health Services that the comment was “role play” (mother’s affidavit, paragraph 10). In cross-examination, the father said he could not recall saying anything of that nature. Nevertheless, the parties separated for two weeks.
The father gave the mother a letter where he said “I am sorry if anything I said offended you. … I say things and do things which I cannot comprehend or think ‘why did I say that?’” (mother’s affidavit, paragraph 10) (emphasis in original). The father conceded that he had written the letter but did not admit a correlation between the asserted conduct and the contents of the letter.
Following X’s birth in 2017, the mother’s mental health appeared to deteriorate. The mother subsequently obtained counselling for her emotional state and voluntarily admitted herself to hospital in 2017 for post-natal anxiety.
In 2017, the mother was reported to have threatened to self-harm. Upon assessment, the Department of Communities and Justice found the mother to not be at risk.
The mother contended she observed various incidents of inappropriate behaviour which included:
(1)On two occasions, the mother returning home and finding X naked in the backyard with the father asleep. The father denied this contention.
(2)X stating to the mother during bath time that a “cookie cuddle” is “rubbing up and down naked on top of you then you get a cookie” (mother’s affidavit, paragraph 21) (emphasis in original);
(3)The mother finding an email for the father to receive a request containing naked pictures of a 12 year old boy. The father denied this;
(4)An incident in which X smacked the father’s penis after he stepped out of the shower naked while X was in the bathroom. The mother said that the father was smiling. The father denied that he smiled or that he found the incident pleasurable;
(5)The father messaging the mother saying that he was looking forward to “daddy daughter time” (mother’s affidavit, paragraph 36) (emphasis in original). The father denied saying this to the mother.
(6)X saying to the mother that the father showers with her and that it’s okay for her to look at his penis and bottom because he is her father. The father denied saying this; and
(7)X exhibiting sexualised behaviour including rubbing her groin on the mother, which represented a “cookie cuddle” (mother’s affidavit, paragraph 43).
Following separation, the father initially spent daytime only with X. The father said that time eventually progressed to equal time by around 2021. The mother said that time progressed such that the father had care of the child from after school Wednesday to Sunday afternoon each alternate week. Nothing turns on this issue and it is unnecessary to resolve the conflict in the evidence.
The father admitted that he had showered with X “until she developed the motor skills to do it alone” (Family Report, paragraph 27). In cross-examination, he said this was when X was approximately three to four years of age.
In late 2021, the mother reported the father’s behaviour to the police.
In late 2021, the police attended the father’s home. The father was subsequently arrested and charged in late 2021 with possession of child abuse material. The father pled guilty to the charges.
In relation to the content of the child abuse material, the single expert recorded:
14.… [The father] elaborated that the material included girls taking off clothes, being nude, sometimes taking instructions (to dance or strike poses) and in some cases masturbating (though given their young ages more accurately this was likely simulating masturbating). He described the girls as often pre‑pubescent though there was no definitive inclusion or exclusion criteria for him. He declared that in no videos were there adults interacting with the girls (though then conceded that was restricted to ‘no adults seen on screen’ at the time). He repeated throughout that this was the extent of the material and maintained denial that he sought out any ‘daddy/daughter’ material or material that involved adults performing sexual acts with children, describing that he would have found that abhorrent.
The father stated in his affidavit that he “turned to looking at pornography to help [himself] deal with life” as he “was distraught at not being able to see [his] daughter”, stressed about a new job and “had anxiety about [the mother’s] calls and texts” (at paragraph 32).
The father said that he only viewed child abuse material after separation as a way to deal with his stress. However, the single expert noted:
19.… police COPS narratives indicate the material found on the USB dated back to 2014 and specifically referenced daddy-daughter material … [The father] could only offer that ‘perhaps the material was older’, but he had only sourced it more recently, and remained adamant that he only commenced accessing material with young children after his separation and repeatedly denied any specific ‘daddy-daughter’ content.
(Emphasis in original) (Footnote omitted)
The time at which he first viewed child abuse material became an issue in the proceedings. This will be addressed below.
The mother contended that she was informed by a police officer that the father attended the police station and handed in another hard drive containing child abuse material which he had thrown into the sea. The father denied that he had thrown the hard drive into the sea. He said he hid it under a rock at high tide with the intention of viewing it and that a couple of days later he handed it to the police. In cross-examination, the father said he was unsure whether the hard drive contained child abuse material and denied accessing the device between the time of his arrest and handing it to the police.
In late 2021, the mother contended that after asking for a cuddle X began straddling her legs and said, “like a cookie cuddle. I get cookie now” (emphasis in original). When asked where she learnt that X apparently replied it was from “nanna” before changing her answer to the father (mother’s affidavit, paragraph 56).
In late 2021, an apprehended domestic violence order (“ADVO”) was taken out for the protection of X.
The maternal grandmother deposed that X told her that she showers with the father, that she smacks his bottom and that they can see each other’s private parts because they are father and daughter. She also deposed that X told her she had pictures of her private parts on her iPad and that the father had taught her how to take the pictures. The father denied teaching X how to do this.
In late 2021, the father was sentenced to a community corrections order with the conditions that he be of good behaviour, that he accept supervision from Community Corrections, that he perform community service, that he continue with mental health treatment and that he complete the sex offender’s treatment program. The father was also required to be on the Child Protection Registrar for sex offenders until 2029.
Following the father being charged, the mother facilitated supervised visits for three hours a day three times a week at a park. There were four visits after which there appears to have been some sporadic time at the paternal grandparents’ homes. The mother contended that at a visit in early 2022 at the paternal grandmother’s house, X said that she wanted to go and play doctors and nurses with the father alone. The father said he did not recall X saying this.
In early 2022, the father commenced the sex offender’s treatment program.
On 17 February 2022, the mother commenced proceedings seeking parenting orders.
On 4 May 2022, the proceedings were transferred to Division 1 of the Court and allocated to the Magellan list.
The last occasion on which X spent any time with the father was in June 2022.
In late 2022, by consent, X’s last name was change from Harland to Adena.
In early 2023, the paternal grandmother passed away. The father subsequently breached the ADVO by sending a parcel of gifts to X, which he contended were from the paternal grandmother. The father was arrested and sentenced to a conditional release order.
Around this time, the mother stopped replying to the father and paternal family’s messages.
In early 2023, the father completed the sex offender’s treatment program.
On 14 September 2023, the matter was set down for trial for four days commencing 7 November 2023.
In late 2023, the ADVO against the father expired.
SUBMISSIONS OF ICL
The ICL contended that there should be no time between X and the father as the father poses an unacceptable risk of harm. It was submitted that the father lacked insight into his offending as well as the mother’s feelings, and that he was unable to articulate the risk posed to X during his offence cycle. Counsel for the ICL submitted that the Court could not find that the father’s offending occurred only in the context of the parties’ separation.
Counsel for the ICL submitted that there is some doubt about the mother’s capacity to facilitate a relationship with the father even on an identity contact basis and that there is little doubt that it would be a “tremendous autonomic difficulty for the mother”. Counsel for the ICL said there was no evidence that the mother will decompensate in facilitating the relationship but submitted that her parenting capacity would be impacted.
Counsel for the ICL urged that I make a finding that the father posed an unacceptable risk to X even in a supervised setting on the basis that the Court could not be satisfied that the father would not be in an offence cycle if he recommenced spending time with X. Whilst the risk of a contact offence would be low in a supervised setting, counsel for the ICL submitted that there still existed a risk that the father would say something or act in an inappropriate manner.
SUBMISSIONS OF MOTHER
Counsel for the mother submitted that the father posed an unacceptable risk and that the Court needed to consider the risk posed to X, the magnitude of that risk and whether it could be mitigated. She submitted that there were three risk factors; the father’s dishonesty about his offending, the father being in the early stages of the development phase and any form of contact increases the chances of things going wrong.
Counsel for the mother urged that I make various findings in relation to the father, which I will address later in greater detail. It was submitted that if those findings were made, then inevitably there could be no contact between X and the father because the risk is unacceptable even in a supervised setting.
The mother’s counsel submitted the father was an unimpressive witness who did not display a proper attitude to parenting and lacked insight as to the impact on X and the mother. She submitted that the father was entrenched in what he had achieved through therapy rather than how the mother would feel at having to have contact with the father when she does not want to. Counsel for the mother submitted that it would be distressing for the mother to have to facilitate a relationship between X and the father, and that she would struggle because she is a vulnerable parent. It was submitted that this struggle would deeply affect X.
Counsel for the mother submitted that X’s relationship with the father would be distorted even in a supervised setting because the father holds a deep-seated and enduring interest in sexualised children. It was submitted that there will be an emotional impact for X in either a supervised contact or no contact scenario but that the no contact option was preferable as it removed the anxiety on the mother of having to facilitate a relationship. Counsel for the mother conceded that the single expert’s evidence was that the least detrimental outcome would be identity contact but submitted that the single expert also said that he did not know which outcome would be more harmful in the long run. She also submitted that an injunction for the personal protection of the mother and X was appropriate in circumstances where the father lacks insight about the mother’s feelings and it was necessary to prevent the father from approaching and/or contacting them.
SUBMISSIONS OF THE FATHER
Counsel for the father submitted that while X is at an unacceptable risk of harm, that harm can be mitigated in a supervised setting. He submitted in line with the single expert’s evidence that the least detrimental outcome for X is identity contact with her father and that in the event of a no contact order, she was at high risk of a “serious emotional and psychological impact” (Family Report, paragraph 147). Counsel for the father submitted that the single expert has identified and articulated the risk of harm that a no contact order would have on X's wellbeing in circumstances where she indicated to the single expert that she has a positive relationship with her father, wants to see him and firmly identifies him as family.
Counsel for the father submitted that in the risk assessment exercise, identity contact is a desirable solution to balancing the risks that exist. He submitted that the father’s risk of recidivism is in the lower range, that he had completed a lengthy and challenging treatment program under a reputable therapist and that the adverse findings the mother’s counsel urged cannot be made because of a lack of evidence.
Counsel for the father submitted that I should not make adverse credit findings against the father for his contradictory answers because, so it was said, when the father’s answers are looked at globally, it shows that the father’s insight has developed slowly and steadily through his treatment programs.
EVIDENCE OF THE PARTIES
The mother’s presentation in cross-examination was largely consistent with the observations of the single expert as recorded in the Family Report. She mostly answered questions directly albeit was at times tangential. The single expert recorded:
98. [The mother] was also asked to complete an assessment relating to underlying personality characteristics and their interaction with her present emotional wellbeing. On this measure, [the mother’s] responding indicated a considerable level of unusual responding indictive of likely idiosyncratic interpretation or consistent misinterpretation of questions. …
(Footnote omitted)
I am satisfied having listened carefully to the mother and watched her give her evidence that any unusual response to the answering of some questions was a consequence of her inability to understand and/or comprehend the question rather than a device to avoid answering the question or to mislead.
The mother impressed as seeking to protect X and saw no benefit to any time between X and the father. She demonstrated an intense and unshakeable distrust of the father and his motives, perceiving even the most innocent of actions through the prism of betrayal. This was clearly exemplified by her response to the cross-examination about a passport. In that respect, the single expert recorded in the Family Report:
75. [The mother] stated she no longer has any contact with [the father]. She described that she now becomes very upset when he reaches out to her and that he still does so regularly. She provided an example of [the father] contacting to say he wanted to pay for a passport for [X]. [The mother] declared that this seemed odd and felt out of the blue and she was again suspicious about the risk of [the father] attempting to take [X] to another country (namely [Country G]) given he had a history of living there and she understood [Country G] did not interfere in international childcare cases.
The context is important. The mother had previously indicated that she wanted to obtain a passport for X and the father was simply agreeing to her request. This is but a small example of the impact on the mother of even the most innocuous of contact between the parents even where the father was only doing that which the mother sought.
In relation to some of the mother’s evidence, the single expert recorded:
63. [The mother] discussed several interactions between [the father] and [X] that she described had always made her uncomfortable but became more concerning in hindsight, following his charges. [The mother] declared that on one occasion, while they lived together (meaning [X] would have been [an infant] – and likely only just walking), she said she ‘saw [X] ‘smack’ his ([the father’s]) penis’. She recalled that she became uncomfortable when she saw that [the father] was ‘smiling and excited’ at this and did not reprimand [X]. She also recalled conversations between [the father] and [X] that involved words to the effect of ‘I’m your dad and you can look at my penis’, which she clarified occurred during shower time in the context of discussing private parts, and not touching other people’s private parts. Considering the parents separated by the time [X] was approximately [one year old], this strikes this clinician as particularly odd and far, far too early for a child of this age to be capable of such a conversation. The clinician must leave open the possibility that some of these interactions may have been otherwise neutral interactions between a parent and child, that with hindsight and current knowledge could be reconstrued as more nefarious. Certainly, descriptions like ‘smiling and excited’ do suggest that [the mother] is now recalling these memories with a more suspicious lens based on [the father’s] convictions.
(Emphasis in original)
It was not explored with the single expert what “conversation” was initiated by X at a time when she was too young to talk. The paragraph does not reveal what X said that leads to the single expert’s conclusion. Nevertheless, taking into consideration that which is reported by the single expert, I am satisfied that the mother overall presented as a credible witness. I do not discount that some of her evidence may be shaped by what the single expert described as her “strong sense of betrayal and mistrust” of the father (at paragraph 100) but am satisfied that on balance she gave truthful evidence.
The father was extensively cross-examined by the mother’s counsel and counsel for the ICL.
I found the father to be an unimpressive witness. He rarely directly answered a question, had to on a number of occasions be directed to answer the question, tended to make speeches and talked in platitudes.
While professing insight into his offending and the impact on the mother and X, his answers had a rehearsed quality to them and inevitably circled back to the impact upon him despite his attempts to persuade about the level of insight he has acquired through therapy. I am not satisfied that he has the insight he asserts he has or that it is as alluded to by his treating therapist Dr H. The father’s persistent attempts to contact the mother are an example of his failure to appreciate the impact his offending has had upon her and directly challenges any conclusion that he has any insight into the impact of his conduct on the mother. His affidavit filed after the release of the Family Report recorded that “[he] want[s] to work together closely with [the mother] as [X] gets older and life becomes more challenging for her” (at paragraph 73). In light of what the mother reported to the single expert, which the father must surely have read, it reflects a profound lack of insight let alone respect for the mother.
In the course of his cross-examination, having had the benefit of reading the Family Report recording the mother’s strongly held view, including where the single expert said “[i]t should be noted however that this burden should not fall to [the mother] to have to try to explain to [X] the reason for her father’s absence – now or in the future” (at paragraph 142) as well as having heard the mother give her evidence, he maintained that he wished to work with the mother in explaining to X his offending. I have no confidence that the father is equipped to deal in any way sensitively with the mother or X.
The father maintained throughout his therapy with Dr H and his current treaters as well as the single expert that he only accessed child abuse material after separation in 2018. In that respect, the single expert recorded:
19. [The father] was asked about his learned understanding of the motivation for this behaviour. With prompting, he reflected that his engagement with the material did arouse him and did provide a ‘rush’ at the time. He described that through the program, he came to conceptualise that the behaviour was a form of coping, because of his own unmet emotional needs. He reiterated that he began to use the material only after his separation from [the mother]. The clinician notes however, that police COPS narratives indicate the material found on the USB dated back to 2014 and specifically referenced daddy‑daughter material which raises concern about his foundation defence of both aspects, which is considered pivotal here. [The father] could only offer that ‘perhaps the material was older’, but he had only sourced it more recently, and remained adamant that he only commenced accessing material with young children after his separation and repeatedly denied any specific ‘daddy‑daughter’ content.
(Emphasis in original) (Footnote omitted)
The father asserted separation occurred in February 2018. His assertion that he only accessed child abuse material after separation is inconsistent with what he told the police. In the COPS record dated late 2021, it recorded that “[t]he [father] explained to investigators that he commenced possessing [c]hild [a]buse [m]aterial in 2017” (Exhibit 3, p.75).
During the father’s cross examination, he begrudgingly accepted that it was possible that he had accessed child abuse material as far back as 2012. Such concession, albeit consistent with the police investigations (Exhibit 3, p.73) had never been made to any of his treaters or the single expert. It is but one example of the lack of candour displayed by the father. Another is what he reported to the mother after his arrest, namely that the “images were few and of female children around the age of 16” (Exhibit 3, p.73). There were several child abuse material files of children of a younger age. The father has not been candid with his extended family (whom he says he relies upon for support) in revealing the extent of his offending. Indeed, he is critical of the mother where he asserts:
67. I am distressed that [the mother] has prevented [X] from communicating or having time with any of my family members because she does not trust them. I have been accountable for my actions and have worked hard in treatment and following court directives. My family have been a big part of [X’s] upbringing as part of a consistent and wholesome bonding interaction each week about during shared care. In inhibiting this, [X] has missed out on loving and deeply connecting experiences with people who love her.
It is clear he has not accounted to them for his behaviour, saying in cross-examination that he intends to reveal all to them at Christmas.
For these reasons, I approach the father’s evidence with a high degree of caution and circumspection. Given his mendacity, I only accept his evidence where it is consistent with objective documentary evidence. The evidence of any of his treating psychologists is not objective.
EXPERT EVIDENCE
Attached to the father’s affidavit was a report by Dr H who is the father’s treating psychologist. Dr H in her report speaks in somewhat glowing terms about the father’s progression through therapy. In particular she recorded:
18.Treatment Gains: [The father] demonstrated changes as a result of his participation in treatment from very early on and this is considered to be a function of his active commitment to the process. Firstly, through treatment, [the father] gained relevant insight into the antecedents to his offending behaviour and with respect to a pattern of behaviour that involved sexualisation and distorted attitudes in relation to both females and sex. Through this process, [the father] was able to identify the range of factors that lead [sic] up to and contributed to his sexual offending behaviour and he was responsible, mature and accountable in this.
The single expert contacted Dr H for the purposes of the Family Report. He recorded aspects of his interaction with Dr H as follows:
124. When asked to outline [the father’s] characteristics and level of participation, [Dr H] described him ‘as a model course participant, who evidenced a considerable degree of internal motivation to change, which positioned him well from the outset to gain the most benefit from a course’ such as theirs. [Dr H] said that in addition to his consistent and expected course session attendance ‘[the father] consistently completed assigned homework tasks and regularly practiced the behavioural strategies that linked to the course sessions.’
125. [Dr H] summarised [the father’s] presenting issues as:
i. His sexual deviance needed to be considered in terms of his personality inadequacies, but with that in mind, [Dr H] was confident on the basis of her assessment of him, that his primary sexual drive was not related to children but rather that he remained heterosexual in orientation with a preference towards adult females. She did however acknowledge that at the initial stage of treatment [the father] did derive some degree of stimulation from the internet material he was viewing but noting his conviction and disclosures at the point of entry into treatment, felt this was a positive prognostic sign in the sense that he was willing to acknowledge some sensitisation to online pornography that encouraged a degree of arousal to age-inappropriate targets over time.
…
128. Without prompting, [Dr H] made reference to [the father’s] tendency to refer to his ex-partner in a consistently respectful manner, while acknowledging his failures within his intimate relationship with her and his failures within himself as well. Despite the challenges associated with the Family Court process, [the father] was consistently respectful of his commentary in relation to the process. This included a recognition of his ex-partner’s anxiety in the context of his previous sexual offending behaviour, in addition to a recognition of the need for checks and balances through the Court process to ensure his daughter’s safety.
(Emphasis in original)
Dr C agreed in cross-examination that the absence of candour with Dr H (about when he first accessed child abuse material) calls into question her description of the father as a “model course participant”. I am satisfied that it is the antithesis of one.
I place no weight on the evidence of Dr H. She has not been cross-examined and ordinarily that would limit the weight to be given to her evidence. However, more importantly, the father has admitted that he has not been frank with her as to the extent and longevity of his offending. In those circumstances, any observation she made as to his insight, progress and likelihood of reoffending must be qualified in light of such deception. Put simply, the Court does not know what her position would be in light of this revelation.
The single expert is a highly qualified and experienced psychologist. His Family Report was comprehensive, and he gave evidence in a highly professional manner, making concessions where it was appropriate.
The single expert recorded in the Family Report:
11.… With some prompting, he was able to openly discuss the severity of the convictions against him, and consistently heeded the gravity of his actions throughout – this is to say that he did not appear to attempt minimise or explain away his behaviour. He stated from the outset, ‘there is no justification for what I did’. [The father] demonstrated a genuine, albeit developing reflection into causes for, and impacts of his possession of [child abuse material].
(Emphasis in original)
The single expert agreed in cross-examination that in light of the father’s concession that he possibly had accessed child abuse material as early as 2012, he could not safely conclude that the father had not minimised his behaviour.
In relation to the father’s attempts to contact the mother, notwithstanding her refusal to engage with him, the single expert opined:
34.… he also appeared quite insightless to the obvious futility and texting with offers, failing to accept that [the mother’s] non-responding was in and of itself an indicator of her unwillingness to engage with him.
35. In fact, it took quite some prompting from this clinician to obtain a degree of reflection from [the father] on the impact that his criminal charges and behaviour has likely had on [the mother] and to then link that with her complete absence of willingness to engage with him. …
In relation to his insight, the single expert observed that the father:
36.… is now demonstrating a developing level of insight into the broader impacts of his offending, though is still limited in a focus on himself as becoming a ‘better version’ of himself and falling back into being defensive by repeating that he ‘never harmed [X]’.
(Emphasis in original)
The single expert undertook a number of psychological assessments of the father, including an assessment of the risk of recidivism and reoffending. Having undertaken those tests, the single expert concluded that the father’s:
… profile of offending and psychosocial circumstances suggested his predicted risk of recidivism was [sic] placed him consistently in the low risk range. Across the measures, [the father’s] greatest risk factor was his level of social isolation and the emotional impact this subsequently has on his self-esteem, and a lifelong difficulty with progressing intimacy. …
(Emphasis in original)
He further identified that his risk of reoffending was in a similarly low range and concluded that “across all of these predictive risk assessment measures, [the father] has consistently returned as positive a prognosis as can be hoped for men convicted of possession of [child abuse material]” (Family Report, paragraph 58).
The single expert, as consequence of the father’s concession as to possible use of child abuse material as far back as 2012 and as a result of the evidence that the father had not fully complied with his sentencing and therapy recommendations, revised his risk of relapse from a 2.4 per cent predictive risk of relapse (as stated at paragraph 59 of the Family Report) to 4.5 per cent.
As a result of the new evidence, the single expert indicated that he had a heightened unease in the assessment of the risk that the father posed and moved his risk of reoffending from low to one of low to moderate.
In relation to the mother, the single expert described her as mostly measured during the assessment but observed that:
62.… at one point when discussing the option of future limited ‘identity contact’ between [the father] and [X], [the mother] became extremely overwhelmed and emotionally dysregulated, experiencing a brief panic attack before grounding herself relatively quickly and returning to conversation with the clinician.
The single expert recorded the mother reporting that X would sometimes state that she loved and missed her father but also described that this had reduced in frequency. Of this, the single expert observed:
72.… A more parsimonious explanation though, may be that [X] has ‘learnt’ that her efforts to speak to her mother about her father provide little return for her in terms of validation or hope, and have therefore simply stopped as she perceives this to be futile.
The single expert was complimentary of the mother’s efforts in maintaining contact between X and her father for a period of time after discovering the allegations, observing that the mother “is to be commended for her efforts to maintain contacts between [X] and the father in the immediate aftermath of the charges and indeed this has likely been very beneficial to [X’s] ongoing wellbeing” (Family Report, paragraph 79).
In relation to the possibility of time between X and her father, the single expert recorded that the mother would not be volunteering any contact and would not consent to it unless it was ordered by the Court. He recorded her saying:
80.… ‘as far as I’m concerned, he’s not her father anymore’. [The mother] became distressed and began crying. She described that she had no idea how to approach this conversation with [X], to explain why she cannot see him, or why she could only see him in this sort of context. She then expressed her fear that over time the identity contact could become less restricted and there would become an expectation for more contact or even care time.
(Emphasis in original)
In relation to the question of identity contact, the single expert recorded the mother in the following terms:
82. Briefly, [the mother] entertained that if identity contact should occur, she would want it to be in a public place like a park to be more comfortable for [X] as opposed to a clinical facility setting. She then stated she would not pay for this and was adamant that she did not want [the father] reapplying through Court every few years to increase contact. At this, [the mother] became extremely agitated, indicating she thought she was going to be sick, and had an acute panic attack; she appeared to dissociate and repeated ‘no one can judge this’ and ‘no one knows what’s on his computer’. With prompting, [the mother] was able to regulate relatively quickly and resumed conversation with the clinician. She apologised, agreed she can at times become panicked, describing it as a ‘little tanty’. The clinician notes that [the mother] described similar experiences in her counselling with [Ms J]. She resumed her polite, respectful demeanour with the clinician. She conceded that she had not considered alternate possible outcomes in terms of what the Court may ultimately order in this case.
(Emphasis in original) (Footnote omitted)
In relation to how the mother might react to future time prospects, the single expert recorded as follows:
96. Since the commencement of this matter [the mother] detailed that she had since attended a counsellor, [Ms J], through [K Health Services] and spoke highly of their working together. The clinician notes that [the mother] appeared to have become markedly resolute on all conclusions she has made about [the father] and what is best for [X]. [The mother] also struggled immensely with the discussion of any outcome of this matter that differed from her proposal of zero contact. Given this report must weigh all possibilities before making recommendations, it is likely [the mother] will also find it difficult to receive this evaluation regardless of the final recommendations and indeed she became extremely overwhelmed to the point of panic attack at discussions of identity contact. …
…
103.[The mother’s] overall personality and emotional lability however, does have relevance to the implementation of any ongoing recommendations should the Court deem some form of contact can occur. For example, should the Court determine [X] should have any form of contact with [the father], [the mother] is very likely to struggle immensely with this. It is probable that [the mother’s] reactions to this contact will be observed by [X], and likely experienced as inexplicable conflict. From [X’s] perspective, she has gone from sharing equal time with parents whom she otherwise observed to communicate appropriately, to contacts with her father with her mother also present (where she was likely unaware to the shift in dynamics), to now not seeing her father at all and not being able to ask or raise that around her mother.
104.Should contact be permitted to resume but at the same time, [X] observes this to be a source of extreme distress for [the mother], then this will be experienced as further uncertainty and conflict of which [X] may perceive she is the cause. …
I accept these observations and opinions as to the mother’s reactions to X spending time with the father.
The single expert did not observe X with her father. In that respect, he opined that “to have a single contact after so much time, with no certainty of follow-up would be considerably distressing and potentially unethical, if not simply cruel to [X]. As such, [X] was only observed with [the mother]” (Family Report, paragraph 105).
The single expert observed that X has an “anxious-insecure attachment with her mother” and there was the possibility “of a two-way dependence or enmeshment of the pair” (Family Report, paragraph 106). He described X spontaneously indicating that she missed her father and still loves him even though she does not see him (Family Report, paragraph 109). The single expert observed that given X’s age she is old enough to have, as described by the single expert, ‘sustaining memories’ (at paragraph 110).
He concluded that:
110.… there is a considerable risk of [X] internalising blame and guilt for her father’s absence which will have potentially foundational effects on her self‑concept and self-esteem to be carried with her throughout her life. This will not be able to be processed where she feels she cannot raise this with her mother without causing distress.
The single expert in the Family Report made a number of recommendations. They were as follows:
Care Proposal Option A: Contact Arrangements remain as is, the Mother’s proposal for no contact is maintained
162.The clinician acknowledges that at face value, ceasing contact appears the most risk averse option. However, this would be entirely focused on the presumed physical risk which has no historical basis and only a sense of face-value validity (that is there has been no identified ‘contact offence’). This option also ignores the considerable expected emotional and psychological risk to [X] that comes with severing her established relationship with her father. As such, the clinician sees that at the very least, supervised identity contact could continue and as such does not support this option.
163. Should the Court find reason to maintain this arrangement, then this clinician would strongly recommend [the mother] work closely with a clinical psychologist or other expert in this field to help her develop a long-term and developing explanation to help [X] continue to develop an understanding of her father’s absence and attempt to mitigate the potential risk to her identity and long-term wellbeing.
Care Proposal Option B: The Father’s proposal for a progression back to equal shared time
164. [The father] offered a proposal for six months of supervised contact, during which time he seeks to mediate with [the mother] and work collaboratively on a plan to progress to equal shared time. [The father] appeared willing to be flexible with [the mother] on what shape this may take; though without her feedback, he hoped for this to be ordered after six months. This clinician considers this far too short a time for supervised contact. This clinician considers that while the risk remains low, [X] is growing into the age-group identified on the [child abuse] material obtained. Also, at her young age, she is still reliant on a carer for security and not yet likely to be able to seek support and security on her own. As such, this clinician does not support [the father’s] timeline. In contrast, this clinician would support supervision persisting for a medium-term period (at least) and certainly the parents developing a basic communication process through mediation would assist that. If [the mother] becomes willing, the parents may be suited to a family or relationship counselling format to ensure [the mother’s] concerns are heard, enable [the father] to be more responsive to any reactions expressed by [X] to her primary attachment figure, and to address the impact bearing this concern will now have on her for the rest of her life.
Care Proposal Option C: A proposal for supervised identity contact at a minimum
165. Given the above, this clinician feels there is sufficient evidence to suggest that at a minimum, [X] should be afforded identity contact with her father. At this age, at a minimum, it would be once every two months; however, noting the strength in [X’s] voice, this clinician would recommend at least fortnightly supervised contact, with times to be agreed by the parents, but failing that, each alternating Saturday for two to four hours. These contacts could occur at a contact centre, but acknowledging [the mother’s] concern for the clinical nature of this, it would be preferred if a contact service could facilitate in public, contact on the same schedule. While the clinician acknowledges that this is not [the mother’s] preferred option, at this interview she did make considerations for this option, and indeed a review of her counselling notes with [Ms J] also make several references to the possibility for some form of supervised contact.
166. Should the Court find this is the extent of the contact that can be safely afforded, the clinician would recommend reducing this contact down to monthly after 12 months, then down to four times per year after another 12 months unless otherwise agreed by the parents. The clinician notes that with this option comes the challenge of explain to [X] as she ages, the reasons her contact with her father is so restricted. The clinician would defer to the expert input of [Dr H] and [L Psychology] to assist [the father] with developing a model for communicating his history to [X] at various age-appropriate times.
Care Proposal Option D: A proposal for supervised identity contact with future potential for care time
167. This final option builds upon option C, though allows for the potential progression back to care time, pending a substantial period of the father demonstrating a maintenance of therapy, treatment and relapse prevention, and allowing [X] time to mature into a capacity to take action to be self-protective where needed. In this option, the clinician would recommend that the father require direct supervision in a contact centre or public place under the supervision of a contact service for at least two years. During this time the father should remain involved in the group program at [L Psychology] until it’s completion, then maintain individual therapy through [L Psychology] or other appropriate service for the remainder of at least that two-year period (if not indefinitely). It would also be recommended that the parents be Ordered to shuttle mediation, so that [the mother] especially always has a forum to express her concerns and contribute to risk mitigation strategies at all contacts and moving forward.
168. After two years, meaning [X] should be at least 8 years old, and pending [the father] has not relapsed or demonstrated further behaviour of concern during supervised contacts, the clinician would recommend the next step be daytime contacts in the home of the paternal grandfather or paternal aunt [Ms M], such that [the father’s] contacts are still supervised by kin. These could occur fortnightly for one night for six months, then two nights a fortnight for another six months, until [X] is at least 9 or 10. Following this, the clinician would recommend that the father be allowed overnight contact supervised by family unless otherwise agreed by the parents. The clinician would consider this arrangement should be maintained until [X] has reached 13 years old, at which point she could more collaboratively contribute to the discussion of whether she would like to spend unsupervised overnights with her father. Should the parents have maintained a productive relationship through mediation then it is hoped they could navigate this within that format then.
In his oral evidence, the single expert revised Option C to identity contact every two or three months. I asked the single expert whether the least detrimental outcome for X was identity contact three to four times a year. He answered, “I think so but it’s very guarded”.
UNACCEPTABLE RISK OF HARM
Each counsel submitted that the father posed an unacceptable risk of harm to X. The ICL and mother submitted that the harm was not able to be safely managed and/or mitigated and that a no time order was necessary.
The father’s counsel submitted that the risk could be managed by an order for supervision.
The primary issue that informs what time (if any) X should have with her father is whether the conceded unacceptable risk is able to be managed.
The High Court reminds in M v M (1988) 166 CLR 69 at 76:
… it is a mistake to think that the Family Court is under the same duty to resolve in a definitive way the disputed allegation of sexual abuse as a court exercising criminal jurisdiction would be if it were trying the party for a criminal offence. …
…
In considering an allegation of sexual abuse, the court should not make a positive finding that the allegation is true unless the court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v. Briginshaw. …
(Footnote omitted)
Further, the High Court states at 77–78:
No doubt there will be some cases in which the court is able to come to a positive finding that the allegation is well founded. In all but the most extraordinary cases, that finding will have a decisive impact on the order to be made respecting custody and access. There will be cases also in which the court has no hesitation in rejecting the allegation as groundless. Again, in the nature of things there will be very many cases, such as the present case, in which the court cannot confidently make a finding that sexual abuse has taken place. And there are strong practical family reasons why the court should refrain from making a positive finding that sexual abuse has actually taken place unless it is impelled by the particular circumstances of the case to do so.
In resolving the wider issue the court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assess the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child's welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access. In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access. Even in such a case, however, there may be a risk of disturbance to a child who is compulsorily brought into contact with a parent who has sexually abused her or whom the child believes to have sexually abused her. But that is not the issue in this case.
Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. The degree of risk has been described as a “risk of serious harm” (A. v. A.), “an element of risk” or “an appreciable risk” (Marriage of M.), “a real possibility” (B. v. B. (Access)), a “real risk” (Leveque v. Leveque), and an “unacceptable risk”: In re G. (A minor)). This imposing array indicates that the courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child's paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.
(Footnotes omitted)
In Isles & Nelissen (2022) FLC 94-092 (“Isles & Nelissen”), the Full Court had cause to reconsider the issue of unacceptable risk. In the course of their judgment, their Honours observed that earlier decisions of the Court in Potter and Potter (2007) FLC 93-326 and Johnson and Page (2007) FLC 93-344 no longer accurately reflect the law in so far as they suggested that unacceptable risk needed to be established on the balance of probabilities.
Their Honours observed that when allegations of harm are raised, the relevant historical facts that underpin the allegations need to be established on the balance of probabilities.
However, when assessing whether there is unacceptable risk of future harm, the possibility of a risk of harm may be based on a finding of a possibility of harm in the past, which may not have been established on the balance of probabilities. In undertaking this risk assessment, the Court is assessing both the prediction of future harm and the severity of the impact if it eventuates. At some point in the risk assessment, the possibility of future harm and severity of harm may become unacceptable.
As their Honours observed:
47.… the civil standard of proof is not the measure by which an unacceptable risk of harm is to be assessed. The civil standard of proof is reserved for the proof of facts, the positive or negative findings in relation to which could well feed into any alternate finding about the existence of an unacceptable risk of harm.
In relation to the question of risk and its management, the mother’s counsel urged that the Court make a series of findings. The making of those findings must, so the mother’s counsel submitted, lead inexorably to an order for no time. I am of the view that a consideration of whether there is or is not time is not as reductive as submitted by the mother’s counsel.
The urged findings are as follows:
(1)That the father was viewing child abuse material from as early as 2012;
(2)That the father did download ‘daddy/daughter’ material;
(3)That the father’s offending behaviour extended beyond the charges he pleaded guilty to;
(4)That the hard drive the father hid following his arrest did include child abuse material;
(5)That the father has an enduring interest in young female children and/or in viewing child abuse material of young female children;
(6)That the father has groomed or will groom X; and
(7)That the father has not been honest with the single expert, Dr H and his current therapist regarding his offending.
My findings in relation to these are discussed below.
Whether the father viewed child abuse material from as early as 2012
The father conceded during the course of his cross-examination that it was possible that he had viewed child abuse material from as early as 2012.
Further, the COPS entry dated late2021 recorded that “[u]pon further investigation [d]etectives forensically examined further electronic storage items and it was discovered the [father] had material downloaded dating back to 2012” (Exhibit 3, p.73).
I am satisfied, consistent with the admission by the father that he had possibly viewed the material together with the COPS entry, that the father did view child abuse material from as early as 2012.
Whether the father downloaded ‘daddy/daughter’ material
The reference to ‘daddy/daughter’ material appears in the COPS entry dated late 2021, where it is recorded, “[i]n particular, the [father] has files relating to ‘[d]addy and [d]aughter’ sexual activity” (Exhibit 3, p.73).
The father denied viewing ‘daddy/daughter’ material. There is no evidence as to what “[d]addy and [d]aughter sexual activity” means; whether that is a precise term or whether that is the interpretation of an investigating officer.
I am not satisfied on the balance of probabilities that I could make a finding that the father had downloaded child abuse material in the form of ‘daddy/daughter’ sexual activity.
Whether the father’s offending extended beyond the charges he pleaded guilty to
Mr N, a psychologist, recorded at paragraph 6 of his report dated late 2021 that the father “recalled he deleted the material five (5) to six (6) times since 2018, however, when he felt sad and depressed, he would re-engaging [sic] in the offending behaviour” (Exhibit 3, p.31).
In light of this evidence, it is clear that the extent of the father’s offending behaviour extended well beyond the images identified in the Fact Sheet downloaded after 2018.
Whether the hard drive that was hidden contained child abuse material
I am satisfied that the father did hide a hard drive following his arrest. His evidence was that he located the hard drive and hid it under a rock above the high-tide mark. The father said that he retrieved the file and gave it to the police. When the police inspected it, no material could be recovered from it. I am not sure what is meant by this. It is unclear whether no child abuse material could be recovered or whether nothing at all could be recovered because it had been water damaged.
The father said that he did not view the hard drive between the time of his arrest and handing it to the police. The father’s explanation for why he hid the hard drive was unsatisfactory. A possible explanation for hiding it is that he knew that it possibly contained child abuse material. Such an explanation has the attraction of plausibility. Notwithstanding what I regard as a more plausible explanation, I am, given the gravity of the allegation, not satisfied that I could find on the balance of probabilities that the hard drive did contain child abuse material.
Whether the father has an enduring interest in young female children and/or in viewing young female children
I am satisfied that the father does have an enduring interest in young female children and/or in viewing child abuse material of young female children.
Mr N in his report dated late 2021 recorded as follows:
4.… In his early thirties he experienced sexual fantasy and attraction to mid to late teenage and began engaging in sexualised school girl role playing with consenting partners. In 2018 the breakdown of his long term relationship resulting in a deterioration of his emotional functioning and he began seeking comfort via the internet and pornographic chat rooms. He became increasingly interested in sourcing child abuse material, saving the material to later delete it, only to resume the offending when he felt emotionally distressed. Results of assessment indicate [the father] suffers a paraphilia associated with sexual attraction to teenage females.
…
6.… [The father] admitted becoming interested in young girls and sourced capture software to record the girls engaging in sexual acts. [The father] acknowledged he would go to online chat rooms where girls, aged in their early to mid-teens, would engage in sexualised behaviours …
…
41.[The father] reported having engaged in sexual role play, fantasising about engaging in sex with school girls. This along with the ages of the females, as reported in the police facts sheet, suggest some portion of those images may be of the teenage age range similar to his sexual role play”.
(Exhibit 3, pp.30–31, 37) (Footnote omitted)
I am satisfied that the father has had an interest in young females for a significant period of time.
Whether the father has groomed or will groom X
In this respect, the mother relied upon the evidence of the maternal grandmother which is to the following effect:
5. When minding my granddaughter [X], who was 4 years old at the time, I asked her before dinner time if she wanted to have a bath or shower, [X] replied “when I'm at home with Mummy I have a bath & play with my toys. At Daddy’s house I shower with Daddy & he lets me smack his bottom and told me that he can see my private parts because I’m his daughter and I can see his privates because he is my Daddy.”
6. On another occasion [X] had her iPad & said “I have my privates here I’ll show you”. She looked for that picture for several minutes but could not find it [X] said “I don't know where it has gone.” I said “how did you do that”, she said “Daddy told me to take my pants off & put my iPad between my legs & I took a photo”. I was shocked and phoned my daughter [the mother] to relay that information. I believe that [the mother] phoned the female Detective handling the AVO and reported the above two facts.
(As per the original)
The mother also relied upon her affidavit as follows:
10. From early in the relationship, I was concerned about [the father’s] sexual interests. I recall an occasion in or around 2016 where [the father] said to me “I want to bend you over the car and pretend you’re my daughter”. I cannot specifically recall my response however I was shocked and we began to argue. I then proceeded to call [E Family Services] to speak to [Ms P] (who is now retired) and the [F Health Services] ([Ms Q]) whom both stated “this comment is simply in relation to ‘role play’, and that role play is common in relationships”. We separated for approximately 2 weeks however even though we got back together I felt unsettled after this. He later gave me an apology letter which I continue to have a copy of. The letter said “I am sorry if anything I said offended you. I did not mean or have intent to make you angry or upset … Sometimes my head is a jungle and so many things are whizzing and whirling around. I say things and do things which I cannot comprehend or think “why did I say that?” …”. In this letter he was referring to what he said to me above. …
…
21. I recall another occasion where I was bathing [X] and she said again to me “Cookie cuddles.” I asked her what it is, she replied “rubbing up and down naked on top of you then you get a cookie.”
…
28. Approximately six weeks before I moved out, [the father] got out of the shower and he had a towel over his shoulders. [X] was inside the bathroom and as she was coming out, he was in front of the doorway blocking her. She was at the same height as his penis. She then smacked his penis with her hand. On my observation, he appeared smiling and excited by it. [X] started walking around [three to four months prior to this incident].
29. I also recall a conversation said by [X] to me around 3.5yrs to 4ish between [the father] and [X] that involved words to the effect of ‘I’m your dad and you can look at my penis’, which occurred during shower time in the context of discussing private parts, and not touching other people’s private parts.
…
36. After our separation, [the father] would send me text messages which said “I’m looking forward to daddy daughter time”. This was unsettling for me and echoed back to when he had requested that we undertake “daddy daughter” type sexual role play.
…
42. I recall when [X] was about 3 years old, she said to me “I can look at Dad’s penis in the shower because he’s my dad and I'm his daughter’. [X] said to me “Daddy showers with me and said its OK to look at his penis and his bottom because it is daddy”.
(As per the original)
The mother contended that the totality of the evidence would lead the Court to conclude that the father had groomed or will groom X. The single expert opined that it was open to conclude that she was being groomed but that it was a matter for the Court’s determination.
The father denied almost all of the mother’s allegations. I accept that some of the conversations that X reported to the mother may be innocuous and not capable of leading to the conclusion the mother urges.
The grandmother’s evidence where X reports to her the use of the iPad is very concerning. I note the father’s denial. The grandmother was not shaken in cross-examination, and I accept her evidence. X has obviously not been asked about the issue nor should she.
Given the gravity of the allegation, I am not satisfied that I could make a finding on the balance of probabilities that the various matters relied upon by the mother, either individually or cumulatively, lead to a conclusion that the father had groomed X.
The mere fact that I cannot make a finding does not prevent the possibility being sufficient to constitute an unacceptable risk. Undertaking a risk assessment, I am satisfied that there remains a possibility that the father was grooming X. I am satisfied that it forms part of the conclusion that the father poses an unacceptable risk of harm and informs in part whether even supervised time can mitigate the unacceptable risk.
Whether the father has been honest with the single expert and other treating practitioners
I am satisfied that the father has not been honest with Dr C, Dr H and his current therapist. The father conceded as such.
As their Honours make clear in Isles & Nelissen, the determination that there exists an unacceptable risk of future harm may be established on a finding of a possibility of historical harm that is not established on the balance of probabilities. The risk assessment process is predictive based on “the foresight of possible harm. … [r]isks of harm must be heeded even if they are improbable eventualities. … [a]t some point on the continuum the risk of such harm becomes so potent it cannot be tolerated: it is unacceptable” (Fitzwater v Fitzwater (2019) 60 Fam LR 212 at [138] and [139]) (emphasis in original).
The single expert opined in the Family Report that the father’s risk of reoffending was as low “as can be hoped” (at paragraph 152) but that “it cannot be zero. And while the risk is low, the damage should that risk be realised, is exceptionally high” (at paragraph 146). The single expert revised his assessment of risk in light of the father’s admission, but the consequence remains the same.
I will now turn to consider whether supervised time is unacceptable.
APPLICABLE LAW
Parenting matters are governed by Pt VII of the Family Law Act 1975 (Cth) (“the Act”).
Section 60CA of the Act mandates that the best interests of a child are the paramount consideration. The objects of the Act are identified in s 60B, which sets out not only the objects of the Act but the principles to be applied.
Section 60B of the Act provides:
(1)The objects of this Part 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.
(2)The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Pursuant to s 61DA(1), the Court is required to apply a presumption that it is in the best interests of a child for the child’s parents to have equal shared parental responsibility for him or her, but that presumption may be rebutted if there are reasonable grounds to believe that a parent of a child has engaged in abuse or family violence, or there is evidence which satisfies the Court that it is not in the bests interests of the child for the presumption to be applied.
In the event that the Court is satisfied that the presumption applies, then pursuant to s 65DAA of the Act, the Court must positively consider whether orders should be made which result in a child spending either equal time or substantial and significant time with both of the child’s parents.
Substantial and significant time is defined by s 65DAA(3) of the Act as follows:
(3)For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b)the time the child spends with the parent allows the parent to be involved in:
(i)the child’s daily routine; and
(ii)occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
In determining what time order should be made under s 65DAA(1) and (2) of the Act, the Court looks to whether spending equal time or significant substantial time is in the best interests of the child, and whether as a separate consideration it is reasonably practical.
The best interests of a child are determined by an examination of the factors as set out in s 60CC of the Act. Section 60CC(2) sets out the primary considerations in determining what is in the child’s best interests. These primary 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.
In applying these considerations, the Court is to give greater weight to the consideration set out in s 60CC(2)(b).
Section 60CC(3) sets out additional considerations in determining what is in the child’s best interests. Those considerations will be discussed further below.
In Mulvany & Lane (2009) FLC 93-404, May and Thackray JJ stated:
76.It is important to recognise that the miscellany of "considerations" contained in ss 60CC(2) and (3) is no more than a means to an end. Self-evidently, they are only matters to be considered. Of course, we accept they are of great importance, being the factors identified by Parliament as those the Court must take into account (when they are relevant). However, they must be applied in a manner consistent with the overarching imperative of securing the outcome most likely to promote the child's best interests.
77.It needs also to be remembered that the importance of each s 60CC factor will vary from case to case. …
(Emphasis in original)
In reaching my decision, I have considered all of the relevant sections of the Act, albeit that I am not required as a matter of law to specifically address each such consideration.
PRIMARY CONSIDERATIONS
Meaningful relationship
It is ordinarily in a child’s best interests to have a meaningful relationship with their parents.
The Full Court in Sigley & Evor (2011) 44 Fam LR 439 identified the following as important matters of guidance in relation to s 60CC(2)(a) at 463–464:
(a)“a meaningful relationship or meaningful involvement is one which is important, significant and valuable to the child”: Mazorski v Albright (2007) 37 Fam LR 518 at [26];
(b)“the court should consider and weigh the evidence at the date of the hearing and determine how, if it is in a child's best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents (“the prospective approach”)”: McCall & Clark (2009) FLC 93-405 at [118];
(c)“what the legislation aspires to promote is a meaningful relationship, not an optimal relationship”: Godfrey v Sanders (2007) 208 FLR 287 at [36]; and
(d)“[t]he submissions of counsel for the father also appeared at times to be based on an assumption that it was obligatory for the trial judge to make the orders most likely to ensure the children had a ‘meaningful relationship’ with both parents. This is an incorrect assumption. The court’s obligation is to make orders most likely to promote the child’s best interests”: Champness & Hanson (2009) FLC 93-407 at [103].
I accept the evidence of the single expert that there are benefits to X having a relationship with her father. I also accept the evidence of the single expert that there are risks to X in not having a relationship with her father. That said, the Court’s obligation is to make orders that are in the child’s best interests and the questions of risk and harm are not subordinate to the issue of a meaningful relationship.
The primary focus of these proceedings has been upon the need to protect X from harm. I am satisfied for the reasons given earlier that the father poses an unacceptable risk of harm to her.
ADDITIONAL CONSIDERATIONS
The Court must also have regard to such of the additional considerations under s 60CC(3) of the Act as are relevant. I will, to the extent that I have not already done so, address the additional considerations.
(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
In Bondelmonte v Bondelmonte (2017) 259 CLR 662, the High Court stated:
34.In some cases, it may be right, in the exercise of a primary judge’s discretion, to accord the views expressed by a child such weight, but s 60CC(3)(a) does not require that course to be taken. They are but one consideration of a number to be taken into account in the overall assessment of a child's best interests.
35.... whilst a child’s views ought to be given proper consideration, their importance in a given case may depend upon factors such as the child’s age or maturity and level of understanding of what is involved in the choice they have expressed.
X is only six years of age and, as the single expert observed, she has no conceptualisation of the criminal convictions against the father. Given her age, she does not have the maturity to understand what the ramifications are for her in relation to the issues that are before the Court.
The single expert did observe that X made it clear that she once had a loving relationship with her father and that she misses him deeply and wants to see him. However, her views are one matter for consideration and given her age and limited understanding, they are not determinative and are of little weight.
(b) The nature of the child’s relationship with each of the parents and other persons
X’s primary carer is her mother who is described by the single expert as her primary attachment figure, albeit he described it as an anxious one.
The single expert described X as having a positive relationship with her father. She has no current relationship with her paternal extended family.
(c) Extent to which each of the parents has taken, or failed to take, the opportunity to participate in making decisions about major long-term issues in relation to the child; spend time with the child; and communicate with the child
It is undoubtedly the case that the mother wishes for the father to not be involved in X’s life and has by not responding to him made it clear that she wishes to have no ongoing engagement with him.
The father on the other hand has attempted to engage with the mother about issues in relation to X. I have already addressed above my view about the father’s insight in relation to his attempts to contact the mother.
(ca)Extent to which each of the parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child
This is not a relevant consideration and there were no submissions made to me to suggest otherwise.
(d)Likely effects 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 (including any grandparent or other relative of the child), with whom he or she has been living
There has already been a significant change in X’s living arrangement consequent upon the father being charged with possessing child abuse material and his subsequent conviction. The single expert observed that X has developed a number of explanations to justify her separation from her father. The single expert, however, observed that as she matures:
141.… she will come to understand that this explanation is insufficient to explain the prolonged duration of their separation and at some point, will want to know why ‘the Judge’ has decided she cannot see her father. …
(Emphasis in original)
The single expert observed that there is no call to separate X from her mother, so the options become one of whether the existing separation be maintained, which the single expert noted has emotional risks, or whether some form of arranged contact should be implemented to address what he described as ‘foreseeable risk factors’ (Family Report, paragraph 141).
(e) The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
There is no evidence before the Court as to the cost of supervision. I do note, however, that the orders the father proposed involved a supervision service; the cost of which his counsel submitted should be shared equally.
I will address the issues of practical difficulty and expense in more detail below.
(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
The single expert identified the following in relation to the capacity of the parents to meet the child’s needs:
143. The only cause for concern relating to the capacity of both parents ostensibly, is their capacity to be able to explain to [X], the outcome that is made into Final Orders. There is some suggestion [the mother] will struggle immensely with meeting [X’s] emotional and psychological needs to process the long‑term context of her relationship (or lack thereof) with her father. [The mother] is understandably markedly concerned about what that would look like, how risk would be mitigated, and whether [the father] would continuously seek to return to Court to increase that contact over the years. Given her own psychological profile, this distress and conflict is likely to impact [X] as [the mother] will struggle to protect her from it, and in line with that, [the father] needs to deeply reflect on that issue with his individual therapist.
I have considerable reservations about the father’s capacity to meet X’s emotional needs. The act of downloading, viewing and engaging through masturbation with child abuse material in my view demonstrates an inability to meet the emotional needs of any child. I am not satisfied that it is demonstrated, given the limitations to the therapy referred to above which the father has engaged with to date, that the father has developed sufficient insight to meet X’s emotional needs.
(g)The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
Not relevant.
(h) If the child is an Aboriginal child or a Torres Strait Islander child, the child’s right to enjoy his or her culture; and the likely impact any proposed parenting order under this Part will have on that right
Not relevant
(i) The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
The single expert observed that both parents approached the matter from what they viewed as a child focused approach. The single expert was very complimentary of the mother’s response upon being informed of the charges and initially being conscious of the importance of time between X and her father. He further recorded as follows:
144. … [The mother] particularly is observed to have maintained this including at the time of the initial charges being brought, as well as to her consideration of identity contact going forward; while she reiterated she would not personally advocate for it, she did state that if so Ordered, she would seek for that contact to occur in a less clinical and more positive recreational (but still supervised) environment for [X]. Even in the height of her distress, [the mother] remained considerate of all aspects of [X’s] wellbeing, and in this sense her resistance to contact with [the father] is in no way seen as punitive, but is entirely and understandably risk averse.
The father’s conduct in downloading, viewing and engaging through masturbation with child abuse material in my view demonstrates a reprehensible attitude to X and the responsibilities of parenthood. It has possibly caused irreparable harm and will most likely reverberate in a negative sense for the rest of the mother’s and X’s life.
(j) Any family violence involving the child or a member of the child’s family
The single expert observed in relation to this issue as follows:
145. There was discussion from both parents of considerable conflict, including the potential for some physical aggression between them while together. However, this reportedly occurred within the first year of [X’s] life. This assessment did not find any evidence to suggest that [X] is currently at any risk of family violence.
(k)Any relevant inferences that can be drawn from a family violence order, if it applies
Not relevant.
(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
These parties have been in conflict about X since at least February 2022. It is in X’s best interests for these proceedings to end and for her to have some certainty in her life. I am hopeful that the orders I make are least likely to lead to further proceedings.
(m)Any other fact or circumstance that the court thinks is relevant.
There is no other relevant fact or circumstance that I have not otherwise addressed.
DOES SPENDING SUPERVISED TIME POSE AN UNACCEPTABLE RISK TO X?
I accept the evidence of the single expert that there is some benefit to X having time with her father and that there are risks to her future emotional and psychological health in not having a relationship with him. I am also conscious that the single expert’s opinion that the least detrimental outcome for X as one involving identity contact only was very guarded.
While I accept that with the presence of an appropriately qualified professional supervisor there is negligible physical risk to X (albeit one cannot say there is no risk), I am satisfied that even supervised identity contact poses an unacceptable risk.
That unacceptable risk arises in the following instances:
(1)I am not satisfied that the father has the degree of insight or, for that matter, necessary degree of control, such that he would not say something inappropriate to X during supervision. The mere presence of a supervisor whilst providing a measure of protection cannot guarantee that the father may not say something inappropriate to X. Whilst the presence of a supervisor would end any such communication, it could not and would not prevent something being said. One consequence of saying something inappropriate could be that the supervision comes to an end, causing distress to X by the commencement of a regime only to see it cease. The father has not observed restrictions placed on him in the past when he breached an ADVO.
(2)Whilst the risk of the father’s reoffending is described by the single expert as now being in the low to moderate range, in the event that the father did reoffend, then the consequence for X would be significant, including in all likelihood an end to the supervision regime or at the very least its disruption while there was the necessary and consequent investigation. Any such disruption could cause psychological harm to X.
(3)Notwithstanding that I am unable to make a finding that the father had engaged in grooming behaviour of X, I am satisfied that the evidence gives rise to it being a possibility and as such, the risk is unacceptable. Such grooming behaviour, if it occurred, may not be immediately recognisable by the supervisor whose experience, expertise and ability to identify such behaviour is unknown to the Court. That mere possibility is sufficient to give rise to an unacceptable risk even within the context of supervision.
(4)The father sought that the costs of supervision be shared equally. No explanation was proffered as to why the mother should contribute to the cost, so the possibility remains that the father is unable to meet all of the costs of supervision. I do not know what the costs of supervision would be. I do not know anything about the parties’ financial circumstances sufficient to be able to determine whether the cost of supervision is affordable. The mother said in her affidavit that she cannot afford to meet the costs of supervision and her evidence was not the subject of challenge. To make an order on the assumption that it could occur only to find that it could not, may cause distress to the mother but could also mean that supervision may at some future date be disrupted because either of the parties or both of them are unable to afford it on ongoing basis.
(5)The identity of who is to be the supervisor or supervision agency is unresolved. The father proposed the initial period of supervision occur through a supervised contact provider agreed between the parties or failing agreement by R Contact Service. I am satisfied that it is entirely inappropriate and not consistent with the best interests of the child that the mother be compelled to engage with the father in the process of identifying a supervisor. In light of her strongly held views of wishing to have no contact whatsoever with the father and her quite visceral response to any form of engagement with him, I am not satisfied that an order of that type would be in X’s best interests.
(6)Similarly, there is no evidence whether R Contact Service would, in light of the father’s conviction, be amenable or willing to provide supervision. Nor am I informed of the practicalities involved in getting the child to the location of the supervisor. In circumstances where the father is the party seeking an order of this type, it fell to him to place sufficient evidence before the Court that would enable the Court to reach a conclusion that supervised time could in a practical sense take place. To make such an order and then find out that its implementation is incapable or impracticable could have the consequence of possibly causing distress to both X and the mother. Presumably, the mother would be preparing X for time to take place only for such eventuality to possibly not occur because there is no agency available to implement the supervision.
(7)It is not difficult to imagine that should supervised time occur, there would inevitably be conversations initiated by X with her mother as to why it is that she has not seen her father or why it is that she does not see more of her father. There is a possibility that the implementation of identity contact might create more uncertainty for X in circumstances where her mother is clearly unable to deal with X in a way which mitigates any potential harm to her arising from conversations about these matters. I further note the observations of the single expert in paragraph 110 where he identifies that there is a risk of X internalising blame and guilt for her father’s absence and that she is unable to process this where she feels she cannot raise this with her mother without causing her distress. These feelings could be exacerbated by spending identity contact with the father which, in light of the single expert’s evidence about the mother and the mother’s own evidence, would cause X distress.
(8)The mother’s level of animosity towards the father poses a risk to X even in the context of supervised identity contact. In that respect, the single expert recorded as follows:
158.… [The mother’s] ongoing animosity towards [the father] does reflect a potential risk and impact to [X] if she cannot protect her (or at least quarantine her) from it.
159. Additionally, there is a considerable risk that [the mother] will reinforce a sense of danger associated with [the father], and demonstrate intense anxiety at the point of their contacts that [X] would undoubtedly pick up on and experience as conflict (as well as potentially internalise as being her fault or her responsibility). …
There is no evidence before me that the mother would be able to moderate or contain her distress to lessen that risk to X.
Another relevant consideration is also the impact upon the mother of the father spending time with X. I am satisfied having read the mother’s quite visceral responses, as observed by the single expert, that any time with the father would have a destabilising influence on the mother’s capacity to care for X, which would impact directly on X. The mother’s evidence which was not the subject of challenge was as follows:
94. I consider that the stopping and restarting of time would be detrimental for [X] emotionally. I am also deeply distressed about the risk to her physically of being interfered with by [the father] as that will be of catastrophic content stated by [the single expert]. I am also concerned about [the father’s] manipulation of [X] and the emotional abuse I suffered during our relationship. I cannot allow for any possibility that either risk could occur.
…
97. I cannot afford any supervised visits and I am not willing to travel to accommodate for this. The nearest contact centre is in [City S] and I do not know if they would even accept [the father] being around other children given his charges.
98. I may plan to relocate depending on the impacts of [X] actually being able to obtain friendships now schooling next door to where [the father] worked in the future as she has only attended here for 9months. I applied to another school for an out of the area application however they responded that [X] wouldn’t be at risk being at a school with kids that belong to families with children that [the father] had [worked with]. There are many teachers having kids themselves aware of her name and him. I say we separated very early in her age […].
…
101. However I have felt generally far more stabilised now that [the father] is not seeing [X] and that we are not required to have communication However, since the release of the [Family] [R]eport, I have felt quite anxious about the prospect of [X] spending any time with [the father]. It causes me to feel overwhelmed and I start to think about the worst-case scenario that in my mind, will occur in light of this case as a whole. And reference to [the single expert’s] catastrophic effects could occur.
I accept the mother’s evidence.
Further, the single expert opined that, in light of the mother’s previous mental health issues, she is a vulnerable parent, and in light of that vulnerability, she would struggle more than a parent who did not have such vulnerabilities.
The single expert recorded the following:
143. … There is some suggestion [the mother] will struggle immensely with meeting [X’s] emotional and psychological needs to process the long-term context of her relationship (or lack thereof) with her father. [The mother] is understandably markedly concerned about what that would look like, how risk would be mitigated, and whether [the father] would continuously seek to return to Court to increase that contact over the years. Given her own psychological profile, this distress and conflict is likely to impact [X] as [the mother] will struggle to protect her from it …
I accept the single expert’s opinion.
I observed the mother give her evidence and take account of the single expert’s description of her quite dramatic and physical response to the possibility of engaging with the father. I am not satisfied that the mother could tolerate even a limited form of supervised time such as identity contact without it impacting detrimentally on her parenting capacity and thus on X.
Weighing all of these matters and acknowledging that there are benefits to X of having a relationship with her father and risks to her future emotional health by not having a relationship with her father, I am satisfied for all of the reasons referred to above that even supervised identity contact carries such a high degree of risk that it outweighs any possible benefit that such time would have to X. I am not satisfied that the unacceptable risk is manageable through supervision.
For these reasons, it is not in X’s best interests to spend any time with her father.
INJUNCTION
The mother sought orders for a permanent injunction under s 68B of the Act to continue until X attains the age of 18 years.
Section 68B of the Act provides as follows:
68B Injunctions
(1) If proceedings are instituted in a court having jurisdiction under this Part for an injunction in relation to a child, the court may make such order or grant such injunction as it considers appropriate for the welfare of the child, including:
(a) an injunction for the personal protection of the child; or
(b) an injunction for the personal protection of:
(i) a parent of the child; or
(ii) a person with whom the child is to live under a parenting order; or
(iii) a person with whom the child is to spend time under a parenting order; or
(iv) a person with whom the child is to communicate under a parenting order; or
(v) a person who has parental responsibility for the child; or
(c) an injunction restraining a person from entering or remaining in:
(i) a place of residence, employment or education of the child; or
(ii) a specified area that contains a place of a kind referred to in subparagraph (i); or
(d) an injunction restraining a person from entering or remaining in:
(i) a place of residence, employment or education of a person referred to in paragraph (b); or
(ii) a specified area that contains a place of a kind referred to in subparagraph (i).
(2) A court exercising jurisdiction under this Act (other than in proceedings to which subsection (1) applies) may grant an injunction in relation to a child, by interlocutory order or otherwise, in any case in which it appears to the court to be just or convenient to do so.
(3) An injunction under this section may be granted unconditionally or on such terms and conditions as the court considers appropriate.
The form of the injunction sought was in the following terms:
2.That on a without admissions basis, the Father, [Mr Harland], is restrained pursuant to section 68B of the Family Law Act 1975 from doing each of the following:
(a) approaching within 50 metres of the mother, [Ms Adena];
(b) approaching within 50 metres of [X]:
(c)approaching within 100 m of any school at which any of the above named child is attending from time to time;
(d)approaching within 100 m of any residential property in which the mother and the child is residing from time to time;
(e)communicating with the mother or the child by any means, including but not limited to telephone communications, social media and SMS messaging
3.For the purposes of section 68C of the Family Law Act 1975, Order 2 herein is an order for the personal protection of the mother and the child.
The father indicated that he consented to the making of the interim orders pending delivery of judgment whilst the mother and the ICL supported the order on a permanent basis.
I am satisfied that it is appropriate that the order be made until X attains 18 years in circumstances where I have no confidence that the father has the insight, such that he would not be able to restrain himself from attempting to contact the mother and/or X. In the past, he has breached an ADVO order and his almost non-existent insight, as identified and referred to in these reasons, gives me cause to be concerned that he could make a further attempt to contact X and/or the mother.
I am also satisfied, given the single expert’s evidence about the mother’s reactions to the father coming into contact with X or the mother having to deal with the father, that such an order would provide a measure of comfort to the mother and enhance her parenting capacity. In those circumstances, I am satisfied that such an order is just and in the interests of X.
COSTS
The ICL indicated that she did not seek an order for costs.
Notwithstanding that the proceedings had not completed in the sense of judgment being reserved, the mother’s counsel made an application that the father pay the mother’s costs. The application was predicated entirely upon the proposition that the proceedings arise entirely as a consequence of the father’s conduct in circumstances where until the father’s arrest, he was spending significant and substantial time with X.
Almost no submissions were made to support the making of the order other than to identify that the mother was in receipt of a grant of aid whilst the father has aid pursuant to the provisions of s 102NA.
Whilst I accept that the father has been wholly unsuccessful in the proceedings and that the proceedings are in one sense necessitated by the conduct of the father, I am not satisfied that there are circumstances that justify the making of an order which would depart from the provisions of s 117(1) of Act.
In that respect, I note that the father made a number of appropriate concessions including seeking only supervised time, which on one view had some support in the recommendations of the single expert. I also note that the father made appropriate concessions in relation to orders sought by the mother for sole parental responsibility and for the issue of a passport. The proceedings were conducted by the father efficiently and expeditiously, and there is no evidence before me as to the financial circumstances of the father.
I am not satisfied that the circumstances justify the making of an order for costs and will dismiss the oral application of the mother.
I will make orders accordingly.
I certify that the preceding one hundred and ninety-three (193) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Schonell. Associate:
Dated: 23 November 2023
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