Angelis and Tobey - [2010] FMCAfam 1414

FEDERAL MAGISTRATES COURT OF AUSTRALIA

ANGELIS & TOBEY

[2010] FMCAfam 1414

FAMILY LAW – Child aged 11 – interim arrangements for care – whether child should spend supervised time with father – father convicted of indecent assault of another child and possession of child pornography – meaningful relationship – balanced against assessment of risk – significance of father’s denial of guilt and lack of candour with independent children’s lawyer – best interests.

Family Law Act 1975, ss.4; 60CC; 61DA; 65DAA; 68LA

Goode & Goode (2006) FLC 93-286
N & S and the Separate Representative (1996) FLC 92-655
M & M (1988) FLC 91-979
Re L (Contact: Domestic Violence) [2000] 2FLR 334

Applicant:

MR ANGELIS

Respondent:

MS TOBEY

File Number:

ADC5769 of 2007

Judgment of:

Brown FM

Hearing date:

8 December 2010

Date of Last Submission:

8 December 2010

Delivered at:

Adelaide

Delivered on:

21 December 2010

REPRESENTATION

Counsel for the Applicant:

Mr Childs

Solicitors for the Applicant:

Johnston Withers

Counsel for the Respondent:

Ms Fuda-Duncliffe

Solicitors for the Respondent:

H F Lambert

Counsel for the Independent Children’s Lawyer

Mr Hemsley

Solicitors for the Independent Children’s Lawyer:

Legal Services Commission of SA

ORDERS

The parties competing application be fixed for final hearing on 7 & 8 July 2011 at 10:00am.
The father attend any appointments arranged for him, by the independent children’s lawyer, to undergo a psychiatric/psychological examination pursuant to any reference made to such expert by the independent children’s lawyer arising from the father’s conviction for offences relating to the possession of child pornography and indecent assault.
The parties attend any appointments, as directed to them by the independent children’s lawyer, to enable Dr M to update the family assessment report herein.
The matter be listed for further directions, when it is anticipated the aforementioned psychiatric/psychological assessment will be to hand and the family report has been updated, on 15 April 2011 at 9:30am.

UNTIL FURTHER OR OTHER ORDER

The orders of 3 March 2010 pursuant to which the father was to spend supervised time with the child of the relationship, [X] born [in] 1999 are suspended.

IT IS NOTED that publication of this judgment under the pseudonym Angelis & Tobey is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT ADELAIDE

ADC5769 of 2007

MR ANGELIS

Applicant

And

MS TOBEY

Respondent

REASONS FOR JUDGMENT

Introduction

The parties to these proceedings are Mr Angelis “the father” and

Ms Tobey “the mother”. The proceedings concern interim parenting arrangements for the parties’ child [X] born [in] 1999, particularly whether she should spend any time whatsoever with her father.
Because of the complexity of the issues surrounding this matter, on 22 January 2008, it was ordered that [X] be independent represented in these proceedings. Her representative is Robert Seymour, an experienced family lawyer employed by the Legal Services Commission of South Australia. Mr Seymour is to be regarded as a party to these proceedings.
The complexity in this matter stems from the fact that, in May of 2008, the father was charged with one count of indecent assault and a number of charges relating to the possession of child pornography.
Besides [X], Ms Tobey is the mother of another child, [Y], born [in] 1993. Mr Angelis is not related to [Y]. The charges against Mr Angelis arose when [Y] and a friend were operating a computer owned by the father, which had previously been used by [X].
On the computer were discovered images of [Y], when she was aged about eleven years, which had been manipulated and super-imposed onto pornographic photographs of adult woman. These images were discovered in mid-2007 and were referred by Ms Tobey to police. It took some time for police to investigate the matter and lay charges against the father.
From an early stage, the father indicated he would dispute the charges against him. On 26 October 2009, he was arraigned, in the District Court on five charges, to which he pleaded not guilty. The trial of the charges against him took place in Adelaide, in the District Court, in September of 2010.
On 23 November 2010, Mr Angelis was sentenced by His Honour Judge Barrett, after having been found guilty by a jury of two offences relating to [Y] and a charge of aggravated possession of child pornography. He was acquitted of other charges by the jury and a nolle prosequi was entered in respect of another charge.
In his sentencing remarks, Judge Barrett said as follows:
“The facts of the offending are somewhat unusual. You had been in a de facto relationship with the mother of your stepdaughter. You had had another daughter by that relationship. After you and your former partner separated you took overnight access to both girls. In about 2002, during an overnight access visit, you contrived to pull down the underpants of your sleeping stepdaughter and took photographs of her partly naked. In addition to that you created over 190 pornography photographs by superimposing or morphing your stepdaughter’s face onto the bodies of adult women in indecent poses. That constitutes the offence of aggravated possession of child pornography.
The offending is of course a gross breach of trust. Your stepdaughter and her mother have been greatly affected by your gross behaviour. I pause to say that a jury acquitted you of doing virtually the same thing to your former partner. I put aside those allegations when sentencing you for the offending against your stepdaughter. You continue to deny this offending. However the evidence at your trial was overwhelming and I sentence you on the basis of the Crown allegations.
You are not entitled to any discount on penalty by reason of any remorse. I have the benefit of a psychiatric report from Dr R who says that on the information available to him you have no sexual disorder or paedophilia. Dr R is in the difficult position of being faced with your continuing denial of the offending”.
In respect of the charges, Mr Angelis was sentenced to three years imprisonment, with a non-parole period of eighteen months. However, due to the fact that the father had no prior convictions and a good work record, Judge Barrett was prepared to suspend the operation of the entire sentence, on condition that Mr Angelis entered into a good behaviour bond for a period of three years.
Accordingly, it took over three years for the charges against the father to be resolved, after the discovery of the incriminating material against him, concerning [Y]. During this period, the father has been regularly interacting with [X]. The question for the court, at this stage, is whether this interaction should continue, now that Mr Angelis has been convicted of serious criminal offences involving children.

Background

The father was born [in] 1969. He began to live with the mother at some time in the 1990’s, after Ms Tobey had separated from [Y]’s father. Mr Angelis and Ms Tobey separated in September of 2001. [X] remained living with her mother. After separation [X] saw her father regularly, particularly on alternate weekends. He also took [X] on some interstate holidays.
In more recent times, the father has been living in a self-contained flat, behind the home of his parents. It is common ground that [X] has a close relationship with her paternal grandparents.
The father did not spend any time whatsoever with [X], between July 2007 and January 2008. Mr Angelis commenced these proceedings, seeking to spend time with [X], on 8 November 2007. Initially, it was the mother’s position that the father should not spend any time whatsoever with [X].
However, on 22 January 2008, the parties agreed that Mr Angelis should spend time with [X], each Saturday from 12 noon until 5:00pm, provided that the father’s parents were present during all periods of time, including at the exchange of [X] between the parties.
This arrangement has essentially remained in place, whilst the criminal proceedings against the father have progressed through the District Court. Injunctions have issued restraining the father from attending at either [X] or [Y]’s schools or places of recreation and restraining him from approaching the mother. In addition, orders were made permitting the father to be able to telephone [X] regularly.
At an early stage of the proceedings, Mr Seymour arranged for a family assessment report to be prepared to assist both the parties and the court to determine what was the best outcome for [X]. The report was prepared by Dr M, a psychologist and child and family counsellor, experienced in assessing the parental relationships of children, in the context of court proceedings.
Dr M interviewed the parties and [X] and [Y] in July and August of 2008. The mother reported to Dr M that she did not feel comfortable about there being any contact between [X] and the father. In addition, she did not trust the paternal grandmother to be a good supervisor, because of her age and support of the father. Ms Tobey also indicated to Dr M that she continued to be highly suspicious of Mr Angelis.
The father was reported by Dr M to be confident on interview. He denied any knowledge of the pornographic photographs throughout. Mr Angelis also spoke enthusiastically about his relationship with [X]. It was also his perspective that [X] enjoyed her time with him but both felt it was unduly constrained.
Dr M summarised his interview with [X] as follows:
“[X] told me that she felt “really, really sad” when she couldn’t see her father for the 5 months between July 2007 and January 2008, explaining to me that her mother told her she couldn’t see him because he did some things he wasn’t supposed to. While she tended to agree with the mother, she said that she also felt mixed up on the inside and didn’t really know what to think. She told me that she tries to make her brain not think about any of what happened, but things keep on coming back. She told me that she found some pictures of her mother and [Y] on her computer that she thought were “weird”, and had called [Y] to have a look. She recalled that when [Y] and her friend [name omitted] came into the room they said she had to leave so she didn’t see many of the pictures. She said that she is now having difficulty accepting that her father did this because it is not the father that she knows, and added that she still wonders how the pictures got onto the computer.
With respect to her past contact with the father, [X] told me that she was seeing her father, and staying over, for as long as she could remember, and that she was happy to visit her father and that her father was happy to see her. She said that they used to do things together, e.g., go for bike rides or go to the park, or sometimes they would watch DVDs. She added that they sometimes used to do things with her father’s parents as he moved in to live with them. She told me that she was going to get her own room when her father moved in with his parents but her father didn’t have enough money, so when she was younger she had slept in her father’s bed, but then had slept either on the lounge or in her nanna’s bed (but not when nanna was sleeping in it).
It was [X]’s impression that her mother used to be happy for her to visit her father, and said she was unaware of any arguing between her parents. She thought, however, that her mother is now “a bit mad” and “a bit upset” at the pictures, and that her mother and [Y] both blame her father for them. She said it makes her feel sad that her mother and [Y] don’t like her father anymore, and she wishes things could be different and go back to the way they were before. She remembered feeling sad that she couldn’t see her father for those 5 months, as she felt her father would have been sad about that, explaining that it was important for her to ensure that her father was happy, as she doesn’t like people being unhappy. She said that now she is only allowed to see her father in the day-time, and only with her grandmother there. She thought that her father was sad about what has happened, which makes her sad, and she also doesn’t want her father to get into trouble.
With respect to further contact with her father, [X] told me that she would like it to go back to the way it was before, as she trusts her father not to do anything to hurt her. She is also aware, however, that her mother no longer trusts her father, she said she just feels stuck in the middle and doesn’t know what to do”.
Neither Dr M nor Mr Seymour have been provided with copies of the images, which led to the criminal charges against Mr Angelis. However, Dr M noted that they had precipitated extreme emotional reactions from both the mother and [Y], as well as leading to criminal charges against Mr Angelis.
In such circumstances, Dr M recommended that contact between the father and [X] be “closely supervised pending the outcome of the criminal matters”. In addition, he recommended that it might be useful if Mr Angelis was assessed by a person with expertise in the area relating to the charges laid against him.

The father’s position

The father’s position is that the current arrangements for him to spend time with [X], on a supervised basis, should continue until the final hearing of his application. It is his overall position that, given the closeness of his relationship with [X], it is appropriate that he should spend overnight and unsupervised time with her. However, he concedes that this outcome would not be appropriate pending trial.
It is his position that nothing untoward has occurred between him and [X], whilst his time with her has been supervised. He argues that it would be potentially detrimental, to [X], if she was not allowed to continue to have some level of relationship, with her father, whom she loves and knows well.
Mr Angelis denies any suggestion that his mother has not properly supervised his contact with [X] or that [X] is bored during the time he spends with her. By necessary implication, it is Mr Angelis’ view that [X] will benefit from having some level of relationship with him and it will be detrimental to her if her time with her father is abruptly cut off, particularly given that she has seen him regularly during the period whilst the charges against him have been pending.
In his most recent affidavit, Mr Angelis deposes as follows:
“I say that [X] and I have done a wide range of activities when we spend time together. Nothing in her demeanour suggests to me that she is bored. For example, two weeks ago we played tennis together. We have also spent time together at the local park, we have visited the museum and the local library. Last Saturday we attended the [omitted] swimming pool, and then we made pizzas for lunch. We also attended the Royal Show together, as we do every year. [X] has already planned that this Saturday we are to go shopping for Christmas presents, and she would like to look at bicycles.”
In addition, Mr Angelis deposes that all his time, with [X], is closely supervised by his mother.
The father concedes that, before any consideration is given to his time with [X] being extended, it will be necessary for Dr M to update his family assessment report. At that stage, he believes that [X] will strongly indicate to Dr M, as she did in August of 2008, her desire to continue to see her father regularly.
In these circumstances, Mr Angelis argues it will be potentially unsettling for [X], if her time with her father is suspended. I have been provided with a copy of a psychiatric assessment prepared by Dr R. This psychiatric assessment was obtained by the father’s solicitors prior to Mr Angelis’ sentencing in the District Court.
To Dr R, the father reported a period of severe depression, which had been treated with antidepressant medication. At the time of the assessment, Mr Angelis continued with this medication. He also confirmed regular marijuana use, on a daily basis.
Of some significance, in the context of the current proceedings,

Mr Angelis maintained his innocence to Dr R in respect of the charges concerning [Y]. This remains his position in the context of the proceedings before me. However counsel for Mr Angelis, Mr Childs indicated to me that no appeal was to be lodged in respect of either the jury verdict or the sentence imposed by Judge Barrett.
Dr R found no evidence of any underlying personality disorder in the father. He diagnosed a previous major depressive episode, following the charges against Mr Angelis, which had resolved with the prescription of antidepressant medication. Dr R provided the following conclusions, regarding his psychiatric examination of the father:
“I could find no evidence that psychiatric factors would have been relevant in the alleged offending. Mr Angelis denied any involvement in the current matter. However, if guilty as charged this would indicate an interest in pornography and the rather unusual aspect of “morphing” pictures of his young stepdaughter onto adult bodies in sexually explicit poses and activity. Nevertheless, there is no other indication to suggest an underlying sexual disorder such as paedophilia.”

The mother’s position

The mother wishes the current orders regarding the father having supervised time with [X] to be immediately suspended. This has not always been her position. On 26 November 2010, the first mention of the case following Mr Angelis sentencing in the District Court, I was told that Ms Tobey wished the orders for supervised time to continue.
At this time, the independent children’s lawyer vigorously opposed the continuation of the supervised time arrangement. I was not prepared to accede to Mr Seymour’s position, without having read the sentencing remarks of Judge Barrett and given the mother’s opposition to such a course. However, I was persuaded to allocate an urgent interim hearing date for the matter, which was 8 December 2010. In the meantime, the mother has changed her position significantly.
The mother has recently deposed that she is concerned that the father’s time with [X] is not currently adequately supervised by Mr & Mrs Angelis Senior, whom the mother describes as elderly. In addition, the mother is concerned at the psychiatric report of Dr R, which indicates the father’s use of marijuana and prescription drugs to manage his level of mood. In addition, she points to the father’s refusal to acknowledge his wrong doing, which she describes as “bizarre”.
The mother concedes that the father and his parents have spent considerable time with [X], over the past few years and, as a result, these relationships are close ones. However, the mother remains concerned about what she believes is the father’s propensity towards child pornography. In these circumstances, it is her position that the court should not order any further time between [X] and her father until such time as he has undergone a detailed psychiatric examination. She would also wish for there to be an updated child assessment report.

The independent children’s lawyer

Mr Seymour has briefed a barrister, Mr Hemsley to appear on his behalf. The law requires Mr Seymour and Mr Hemsley to formulate a position, based on the evidence available to them, which they think will be in [X]’s best interests.[1]
[1] See Family Law Act, at section 68LA
It is Mr Hemsley’s submission that the only person who is fully cognisant of the nature of his offending is Mr Angelis himself and he has demonstrated a lack of candour about his behaviour, both before and after his conviction.
Given this lack of frankness, demonstrated by Mr Angelis failure to provide documents relating to his trial to the independent children’s lawyer, particularly the incriminating images, Mr Hemsley submits that the court is not in a position to assess the nature of the risk which

Mr Angelis may pose to [X]. As such he argues that the court is required to err on the side of caution, in its assessment of what outcome will best serve [X]’s interests, at this interim stage of proceedings.

Mr Hemsley argues that the balance of matters, which the court must consider as to whether or not [X] should spend time with her father has shifted following Mr Angelis’ conviction. Prior to the jury’s finding of Mr Angelis guilt, this court was required to give significant weight to the need for [X] to maintain a viable level of relationship with her father.
Now that Mr Angelis has been convicted, Mr Hemsley submits the court’s responsibility is to give greater weight to the need to protect [X] from suffering either physical of psychological harm, as a result of being potentially exposed to sexual abuse, at the instigation of

Mr Angelis, particularly given that he has been convicted of a serious offence involving another child.
Mr Hemsley argues that there is a significant risk that Mr Angelis poses such a threat to [X]. However, the court is not in a position to properly assess that risk, given Mr Angelis lack of cooperation with both this court and the District Court and indeed the risk may be greater because of Mr Angelis continued denial of any wrong doing on his part arising from the images and his behaviour concerning [Y].
As such, Mr Hemsley argues that there is a need, before the court considers Mr Angelis spending any time whatsoever with [X], for the father to be assessed by an independent expert as to the specific level of threat, which he poses to [X] before Dr M is asked to update his family assessment report. Necessarily this must mean that the court makes no order for Mr Angelis to spend time with [X] either supervised or otherwise, at this stage.

The nature of an interim hearing

Interim hearings have to take place in a shortened form. There is no time available for the cross-examination of the parties concerned. As such, it may not be possible for the court to make findings of fact about issues in dispute between the parties concerned, particularly if those issues depend on findings of credibility.
The essential difference between an interim and final decision is that interim hearings do not determine long-term arrangements for the care of the child concerned, whereas final hearings do. However although the nature of the hearing concerned is different, the same legal principles apply at both the interim and final stage.

The legal principles applicable

In making the interim decision (as at the final stage), the best interests of the child or children affected by the decision remain the most important consideration. The matters which the court must take into account in deciding how a child’s best interests are to be served is set out in the Family Law Act [see section 60CC].
What have been called the best interest considerations rest on two main pillars. The first is the importance to children of having a meaningful relationship with both parents. The second is the need to protect children from physical and psychological harm as a result of exposure to abuse, neglect or family violence.
These factors are stressed in section 60B(1), which sets out the objects of the legislation relating to children and are reiterated as the primary consideration in how a court determines what is in the child's best interests by section 60CC(2).
Other criteria relating to how a court is directed to consider how the best interests of any children concerned may be served by any order which the court makes are set out in section 60CC(3). These criteria are categorised as additional considerations.
There is a presumption that it is in a child's best interests for his or her parents to have equal shared parental responsibility for him or her. [section 61DA]. The presumption relates to the allocation of parental responsibility, not to the allocation of time which a child spends with each of his or her parents.
The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence has occurred. The presumption may also be rebutted if the court finds that it would not be in the best interests of the child for it to apply.
The court has a discretion not to apply the presumption at the interim stage if circumstances exist which make it inappropriate for it to be applied [section 61DA(3)]. This subsection is likely to be pivotal in interim proceedings, particularly in cases where untested or unverifiable allegations of child abuse or family violence arise.
In the case of Goode & Goode[2], the Full Court of the Family Court has laid out a pathway for the determination of interim hearings such as this one.
[2] Goode & Goode (2006) FLC 93-286
In determining interim parenting matters, after identifying the competing proposals of the parties, the issues in dispute, and any agreed issues, the court should:
·consider the section 60CC matters relevant and, if possible, make any relevant findings of fact;
·decide whether the presumption in section 61DA should be applied or, if it is rebutted because:
Ø there are reasonable grounds to believe abuse or family violence has occurred;
Ø or, in interim proceedings only, if it would not be appropriate to apply the presumption.

·If the presumption is rebutted or found not to apply, then make the orders considered to be in the best interests of the child, again as a result of applying the relevant section 60CC matters;
·If the presumption does apply, decide whether it should be rebutted because it would not be in the child's best interests;
·If the presumption applies, consider first making an order that the children spend equal time with each parent, then second, an order that the child spend substantial and significant time with each parent unless it is contrary to the children's best interests as a result of the consideration of any relevant section 60CC matter, or is impracticable in the terms specified by section 65DAA(5);
·If neither equal time nor substantial and significant time are considered to be in the best interests of the child, then make the orders which are considered to be in the best interests of the child when considering applicable matters in section 60CC.
·Even in this latter situation, it is open to the court to make an order for equal time or substantial and significant time if the court considers it to be in the best interests of the child concerned.

The suggestion that a parent would sexually abuse his or her child of tender years is a concept that is repugnant and foreign to the experience of most members of the community. As a result, there is a natural tendency to believe that such abuse does not occur or occurs only rarely or only amongst certain classes of people.
Analysis of notifications of abuse to child protection authorities throughout Australia shows the actuality to be otherwise. Sexual abuse of young children can and does occur and is not restricted to any particular group within society.
As such, the potential detriment to a child of being subjected to sexual abuse cannot be understated. It represents:
“…the most severe exploitation of children, the most serious invasion of their rights to personal integrity and freedom, and the most serious denial of their rights to personal growth and development. Its effects, in both the short and long term, can be devastating.”[3]
[3] Per Fogerty J in N & S and the Separate Representative (1996) FLC 92-655 referred to in W & W [Abuse allegations: unacceptable risk][2005] Fam CA 892 at paragraph 94
The leading authority in respect of the issue of sexual abuse involving children is the High Court decision of M & M.[4] In this case the High Court confirmed that in any matter involving allegations of abuse, the only duty of the court is to “make such an order for custody or access which will in the opinion of the court best promote and protect the interests of the child.” As a result of this emphasis, the court does not have an obligation or duty to “resolve in a definitive way the disputed allegation of sexual abuse.”
[4] See M & M (1988) FLC 91-979
The court must bear in mind that proceedings, in respect of care arrangements for children pursuant to the Family Law Act 1975, are not strictly disputes between the parties involved because the primary enquiry is into the result which will best serve the interests of the children concerned. Nor, where there are allegations of sexual abuse, are they criminal proceedings.
In M & M, the High Court formulated the test, which has been referred to as the “unacceptable risk test” as a standard to achieve a balance between the risk of detriment to a child from sexual abuse and the possibility of benefit to the child from parental access. The High Court said as follows:
“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.”[5]
[5] See M & M (supra) at page 77,081
In this case, Mr Angelis has been found guilty of serious criminal charges involving a child of tender years. The offenses concerned had a sexual component. Although Mr Angelis denies his guilt, no appeal is proposed by him.
At this stage, neither the court nor the independent children’s lawyer are in a position to assess the evidentiary basis behind the jury’s finding of guilt, other than that Judge Barrett, the presiding judge at

Mr Angelis trial, considered the evidence against him to be “overwhelming”.
Accordingly, the only evidence against Mr Angelis available to this court indicates that Mr Angelis has committed several incidents of serious sexual abuse of a child. This must represent a very serious and significant failure in his parenting, which has led to [Y] being subjected to an appreciable level of psychological harm and has also resulted in some level of emotional trauma to Ms Tobey.
In cases involving such chronic failures in parenting, the English Court of Appeal has indicated that the factors relevant to determining whether there should or should not be any form of relationship between a child and the perpetrator of such significant abuse include the following:
·Some acknowledgement, by the perpetrator, of his or her behaviour;
·Some acceptance (preferably full, if appropriate) of responsibility for the conduct amounting to sexual abuse;
·Full acceptance of the inappropriateness of such behaviour in the parenting context and of the likely ill-affects on the child concerned;
·A genuine interest in the child’s welfare and a full commitment to the child concerned;
·A desire to make reparation to the child concerned and work towards the child recognising the inappropriateness of the behaviour committed against him or her;
·An expression of regret and the showing of some understanding of the impact of his/her behaviour on their ex-partner in the past and currently;
·Indications that the parent seeking contact can reliably sustain contact in all senses.[6]
[6] See Re L (Contact: Domestic Violence) [2000] 2FLR 334 at 339. This case primarily concerned issues pertaining to serious family violence but is, in my view, relevant to cases involving sexual abuse of a child.
Clearly, in this case, Mr Angelis has expressed no remorse for his proven sexual abuse of [Y]. This is implicit from his conduct at the District Court trial and his continued denial of responsibility in these proceedings. At this stage, I am in no position to look behind his conviction, which he has not sought to challenge formally.
As such, he has demonstrated no discernible insight into the consequences of his behaviour either for [Y] herself or Ms Tobey. In these circumstances, Mr Hemsley argues that the level of risk posed by Mr Angelis towards [X] is heightened and, as such, it behoves the court to take a cautious approach to the case pertaining to [X], until at least the further inquiries proposed by the independent children’s lawyer have been completed.

Consideration of the applicable section 60CC factors

The applicable legislation places two considerations in a position of pre-eminence – the benefits of any child concerned having a meaningful relationship with each of his or her parents; and the need to protect the child from harm, as a result of exposure to abuse, neglect or family violence.
Abuse is defined in section 4(1) of the Family Law Act. It includes a sexual assault on a child and a person involving a child in a sexual activity or using a child as a “sexual object”. Accordingly, it is clear that Mr Angelis has committed acts of sexual abuse on [Y], as a result of the jury’s conviction in the District Court trial. The standard of proof, in the criminal trial, was proof beyond reasonable doubt.
I am satisfied that the evidence, at this interim stage, indicates that [X] knows her father well. She has seen him regularly, on a weekly basis, since the order of January 2008 was made, a period now approaching three years. It is a significant period of time. Prior to that time, she had spent weekends and extended holiday periods, with him, since the parties separated. In [X]’s own words to Dr M, she has been seeing her father and staying over “for as long as [she] can remember.”
In addition, when interviewed by Dr M, [X] indicated that she was happy to see her father and he was happy to see her. It is the father’s case that this continues to be the case. He rejects the mother’s proposition that [X] has been bored during recent visits with him. I am unable to resolve this issue at the interim stage.
The essential gist of the father’s case is that, from [X]’s perspective, nothing has changed as a result of the verdict of the jury in the case concerning [Y], Ms Tobey and Mr Angelis. She is too young to comprehend the import of the jury’s verdict and in any event, she should be quarantined from it. Rather she is a child who expects to see her father regularly, as she has done for as long as she can remember. From her perspective there is no reason why she should not continue to see her father, as she has always done.
Neither the mother nor the independent children’s lawyer can point to any specific incident, where [X] has been subject to any form of abuse emanating from Mr Angelis or any specific failure of the supervision ordered to be provided by his mother. There is no evidence to indicate that [X] has come to any harm, whilst she has been spending the periods of daytime “contact” with her father, as ordered by the court in January 2008.
Mr Hemsley’s case rests on his evaluation of prospective concerns rather than actual ones, based on his submission that the father lacks insight into his proven conduct, based on his lack of remorse in the District Court trial and absence of candour in his dealings with

Mr Seymour.
Essentially he submits that it cannot be known, at this stage, either to the court or the independent children’s lawyer, whether [X] is likely to be able to derive any long term benefits from her relationship with her father, given the absence of this insight and candour, on her father’s part and given the gravity of his offending.
As such, given the lack of these components, it may be the case that a proper consideration of [X]’s best interests should dictate, in the longer term, that her paternal relationship should be severed and so should not be countenanced by the court at this stage, certainly not until an independent assessment has been made of the possible forensic consequences of Mr Angelis’ denial of wrongdoing and the full nature of the evidence led against him, particularly the images concerned.
I confess I find this a difficult assessment to make at the interim stage, given that I think the risk of [X] being exposed to the same kind of direct assault and abuse, as was [Y], to be unlikely, if the current regime continues, given there has been no concerns of such behaviour involving [X], on the father’s part, raised by the mother, who was until recently sanguine with the regime continuing.
However, if the evidence ultimately is that Mr Angelis continues to deny his established offending, it may be the case that the court will determine that the benefits [X] is likely to derive from continuing the relationship are limited. It also may be the case that a professional witness might consider that the risk of future incidents of child abuse, involving Mr Angelis and possibly [X], will always remain heightened, given his (the father’s) denial of such past abusive behaviour, which necessarily must imply an unwillingness, on his part, to seek professional treatment in respect of it and so address any risk which he may pose to children (including [X]) in future.
The legislation directs the court to consider the benefits a child is likely to derive from having a “meaningful” level of relationship with his or her parents. The emphasis in the legislation is on not only the quantity of time a child spends with a parent but also its quality.
Meaning in child/parent relationships is likely to come from parent and child being able to interact in a variety of circumstances and conditions. Such relationships derive their strength, for a child, from the opportunity to know a parent at first hand and to have a facility to share memories and common experiences together. In a simple sense, a child is likely to benefit from the love a parent has to give. Accordingly, in this particular case, in my view, it is a significant thing to suspend the time [X] spends with her father, even on a temporary or provisional basis.
In 2000 the English Court of Appeal, via the Official Solicitor, instructed two consultant psychiatrists, Doctors Sturge and Glaser to prepare a joint report regarding the implications of family violence, which arose from four appeals before the Court of Appeal. This report was entitled “Contact and Domestic Violence – The Experts Court Report”.[7] This report was cited by the Court with approval in the four appeals concerned.[8]
[7] Contact and Domestic Violence – The Experts Court Report [2000] Fam Law 615
[8] See Re L (Contact: Domestic Violence) [2000] 2 FLR 334 per Dame Butler-Sloss
In their report, Doctors Sturge and Glazer looked at the potential detriment to a child of having no direct contact with a non-resident parent, in the context of serious past domestic violence. In my view their report is just as relevant to cases involving sexual abuse. They summarised the areas of detriment to a child as follows:
“(i) deprivation of a relationship with the biological father;
(ii)loss of the opportunity to know that parent first-hand; loss of information and knowledge that will go towards the child’s identity formation. While the reality testing may give the child a negative view of the parent, that may be less worrying than the unseen, imagined villain. Where it is a positive view and the child is able to see good in the parent as well as to understand that he did things that were very wrong will help the positive image of himself or herself. While directly this may be more important for sons, daughters can be helped in their attitude to what makes a suitable partner to father her children. Children can have genetic fears – that he or she will be just like the father, sometimes fuelled by their mother’s attitude, and the reality of who their father is can be helpful; if the non-resident parent has been vilified beyond the facts, then the child will have the opportunity of assessing this for themselves;
(iii)loss of the opportunity to know grandparents and other relatives on the non-resident parent’s side of the family. This can add to the loss of genealogical information (although the study by Humphrey et al indicates that clear genealogical knowledge in an adolescent is not a necessary prerequisite to healthy identity formation and good self-esteem). Occasionally successful contact with the non-resident parent’s family can be achieved without contact to the parent himself or herself and without undermining the child by doing so, ie where assessment indicates that such contact can be safely achieved and is in the child’s interests;
(iv)loss of that parent if the child has had a positive and meaningful relationship with him and even where it has been negative if the relationship gave the child some sense of being cared about. Continuity can also be important;
(v)if the parent is able to provide positive and supportive contact and new and different experiences, then loss of that opportunity;
(vi)absence of the opportunity for any repair to the relationships or to the harm done;
(vii)lessening of the likelihood of the child being able to get in touch and/or form a meaningful relationship at a later stage.”

In my view, these are the type of complex issues, which Dr M may be able to address in the up-dated family report, which Mr Seymour envisages he will be able to obtain. However, these are issues for the final hearing, if and when it occurs. The question for the court, at this stage, is the level of risk Mr Angelis poses for [X] and whether that risk is incapable of proper assessment, at this point, given the lack of evidence required by the independent children’s lawyer.
In terms of the assessment of the potential risk Mr Angelis may or may not pose to [X], I agree that some form of independent assessment of Mr Angelis is likely to be helpful. So too will be a up-dated family assessment report from Dr M, which addresses issues of the type identified by Doctors Sturge and Glazer.
At this stage, it is not proposed to sever permanently [X]’s relationship with her father. Clearly, given her age and the strength of her relationship with her father, [X] will not forget her father over a period of months. As such, the relationship can be reinstated later, if the evidence supports it.
The reports envisaged by Mr Seymour can be assembled relatively quickly. I would also imagine that, now the trial involving Mr Angelis has concluded and no appeal is contemplated, the evidence led against him would also be readily available for scrutiny by Mr Seymour. In my view these are factors which militate in favour of the cautious approach advocated by Mr Hemsley.
I do not think the other additional considerations set out in section 60CC need to be considered at this juncture. It is also, I think, inappropriate, given the circumstances of this case, for the presumption of equal shared parental responsibility to be applied in the case.
Given the time frame in which the further evidence sought by the independent children’s lawyer can be obtained and given the very serious charges in respect of which Mr Angelis has been convicted, I have come to the conclusion that the need to protect [X] from suffering harm as a result of exposure to child abuse should be given primacy over the benefits she is likely to derive from continuing her current level of relationship with her father.
The suspension of the orders providing for [X] to spend time with her father will not ipso facto result in the termination of that relationship, which will be able to be reinstated if more evidence is provided to the court.
Given the absence, at this stage, of the exact details of the father’s offending and given his denial of any wrongdoing on his part, I accept the submission of the independent children’s lawyer that it would represent an unacceptable risk for the court to take to continue the order of 22 January 2008.
I will make orders setting the case down for final hearing. I will also make the orders, sought by Mr Seymour, to enable an expert psychiatric report to be prepared in respect of Mr Angelis and for the family report to be updated, in the light of the new evidence available.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.

I certify that the preceding eighty-nine (89) paragraphs are a true copy of the reasons for judgment of Brown FM

Date: 21 December 2010