Arteta & Julini
[2024] FedCFamC1F 98
•28 February 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Arteta & Julini [2024] FedCFamC1F 98
File number: CSC 187 of 2022 Judgment of: TREE J Date of judgment: 28 February 2024 Catchwords: FAMILY LAW – PARENTING – Unacceptable risk –Where the mother contends the father poses such a risk of sexual harm that only supervised time during the day is appropriate – Where the father has an admitted history of illicit drug use whilst the child was in his care – Where the father has produced clear drug test results over the last 18 months – Where the risk alleged by the mother shows no sign of materialising – Where the mother’s bizarre historical behaviour and continued illicit drug use comprise a risk of harm, albeit not an unacceptable one – Family violence – Where there are mutual allegations – Where the presumption of equal shared parental responsibility does not apply – Where the parties had already engaged in a workable shared care arrangement which should not be disturbed – Ordered the father have sole parental responsibility concerning long term decisions for the child – Where failing agreement the child is to live with the mother from Sunday to the conclusion of school on a Wednesday and with the father from the conclusion of school on a Wednesday until the following Sunday Legislation: Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) Pt VII, ss 4, 4AB, 60B, 60CA, 60CC 61DA, 65DAA, 65DAC, 102NA
Mental Health Act 2016 (Qld)
Cases cited: Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34
Harridge & Harridge [2010] FamCA 445
Isles & Nelissen (2022) FLC 94-092; [2022] FedCFamC1A 97
Mauldera & Orbel (2014) FLC 93-602; [2014] FamCAFC 135
N & S & The Separate Representative (1996) FLC 92-655; [1995] FamCA 139
Neat Holdings Pty Ltd v Karajan & Holdings Pty Ltd (1992) 110 ALR 449; [1992] HCA 66
S v Australian Crime Commission (2005) 144 FCR 431; [2005] FCA 1310
Wacando v The Commonwealth (1981) 148 CLR 1; [1981] HCA 60
Division: Division 1 First Instance Number of paragraphs: 69 Date of hearing: 12–13 February 2024 Place: Cairns The Applicant: Litigant in person The Respondent: Litigant in person Counsel for the Independent Children's Lawyer: Ms Bassano Solicitor for the Independent Children's Lawyer: Collier Lawyers ORDERS
CSC 187 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR ARTETA
Applicant
AND: MS JULINI
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
TREE J
DATE OF ORDER:
28 FEBRUARY 2024
THE COURT ORDERS THAT:
Parental Responsibility
1.The Father has sole parental responsibility concerning the long-term care, welfare and development of the Child X born 2015 (“the child”).
2.At least 14 days prior to making any decision about the long-term care welfare and development of the child (“the decision”) the father is to seek the mother’s input into the decision.
3.The father is to inform the mother in writing of the decision within seven (7) days of it being made.
4.The parents shall respond to the messages from the other parents within 24 hours of receiving the messages.
5.Unless in the event of an emergency, the parents will communicate using the Talking Parents application. In the event of an emergency the parents will communicate by telephone.
Living Arrangements
6.That from the date of these orders, the child will live with each parent as agreed between the parents in writing, and failing agreement the child is to live with the mother from 10am on a Sunday until the conclusion of school on a Wednesday or 3 pm if a non‑school day, and with the father from the conclusion of school on a Wednesday or 3 pm if a non-school day until 10:00am on a Sunday.
7.In the event that either parent is unable to care for the child overnight, then the non‑residing parent is to be given the first option to care for the child whilst the other parent is unavailable.
School Holidays
8.During School holidays, the living arrangements in Order 6 shall continue unless upon the giving of at least 28 days notice, each parent may spend a period of three (3) weeks during the Christmas holidays with the child. If this option is exercised any spend time with arrangements in accordance with these Orders are suspended during that block time. Failing agreement, the 3-week block is to be taken such that:
(a)the child shall spend with the mother first half of the Christmas holiday in odd numbered years and second half in even numbered years.
(b)the child shall spend with the father second half of the Christmas holiday in odd numbered years and first half in even numbered years.
Special Occasions
9.Notwithstanding any other order, unless otherwise agreed between the parents in writing, the child shall spend time with the parent with whom they are not residing with on special occasions as follows:
(a)on the birthday of the child, with the parent with whom the child would not otherwise be spending time with on the child’s birthday, from 3:00 pm or the conclusion of school the day immediately prior to the child’s birthday, until the commencement of school or 10:00 am on a non-school day, on the child’s birthday;
(b)with the father on his birthday from the conclusion of school or 3:00 pm on a non-school day until 7:00 pm; and
(c)with the mother on her birthday from the conclusion of school or 3:00 pm on a non-school day until 7:00 pm; and
10.Notwithstanding any other order, the child will spend time with the mother on Mother’s Day weekend, from 3:00 pm on the Saturday before Mother’s Day, until the commencement of school on Monday, the day after Mother’s Day.
11.Notwithstanding any other order, the child will spend time with the father on Father’s Day weekend, from 3:00 pm on the Saturday before Father’s Day, until the commencement of school on Monday, the day after Father’s Day.
12.Notwithstanding any other order, unless otherwise agreed between the parents, the child will spend from 4:00 pm Easter Friday until 9:00 am Easter Monday with the mother in even numbered years and with the father in odd numbered years.
13.Notwithstanding any other order, the child will spend time with the parents for Christmas as follows:
(a)in odd numbered years, with the father from 3:30 pm Christmas Eve until 3:30 pm Christmas Day and with the mother from 3:30 pm Christmas Day until 3:30 pm Boxing Day; and
(b)in even numbered years with the mother from 3:30 pm Christmas Eve until 3:30 pm Christmas Day and with the father from 3:30 pm Christmas Day until 3:30 pm Boxing Day.
Communication
14.The parents will do all things necessary to facilitate telephone communication between the child and the other parent, at all reasonable times, and frequency, as requested by the child.
15.The parents shall keep each other informed of their current residential address, email address and telephone contact numbers and advise each other within 48 hours of any change.
Schools and Extracurricular Activities
16.Both parties shall be at liberty to attend school events to which parents are invited within the guidelines of that school, subject to the discretion of the school.
17.Neither party shall enrol the child in any extracurricular activities which are to be fulfilled during the time that the child is with the other party without the agreement of the other party.
18.Both parties are responsible for taking the child to any extracurricular activity in which the child is involved while the child is in their respective care.
19.If either parent is unable to take the child to their scheduled activity they will provide the other parent 24 hours’ notice, wherever possible, and the other parent will be given the opportunity to facilitate the child attending at their activity.
20.Both parties are responsible for payment for excursions, extracurricular activities, uniforms and any other requirements for any school or extracurricular activities that take place while the child is in their respective care.
Health and Medical Issues
21.Each parent shall inform the other parent as soon as reasonably practicable of any serious illness or medical emergency that relates to the child, by telephone if possible, and not more than within 3 hours of any such attendance.
22.The parties shall advise each other of any medical appointments made for the child, and both parties shall be entitled to attend any such appointments CONDITIONAL UPON the parenting making the appointment advising the other parent in writing and with at least 24 hours’ notice (unless it is a genuine medical emergency) as to the time and date of the appointment, together with the reason.
23.Both parents will authorise the child’s doctors, treating health care professionals and specialists to provide to both parents copies of all reports, documents and information in relation to the child.
Restraints
24.The parents are restrained from consuming any illicit drugs whilst the child is in their care.
25.The parents are restrained, from exposing the child to any illicit drugs, illicit drug use and/or illicit drug paraphernalia.
26.That neither parent shall consume alcohol to excess of the legal driving limit whilst they have the child in their care.
27.The parents are restrained from exposing the children to any acts of family violence and will remove the children from any place where there is a person engaging in an act of family violence.
28.The parents shall not physically discipline the child nor allow any other person to physically discipline the child.
Privacy and Non-Denigration
29.During the time the child is with either parent, that parent shall: -
(a)Respect the privacy of the other parent and not question the child about the personal life of the other parent;
(b)Speak of the other parent respectfully; and
(c)Not denigrate the other parent, any member of the other parties’ family and any associates of the other parties in the presence of the child and shall not permit any other person to denigrate the other parties, any member of the other parties’ family or any associates of the other parties in the presence of the child.
Independent Children's Lawyer
30.The Independent Children’s Lawyer (“the ICL”) is discharged 12 months from these orders, with the thanks of the court.
31.Both parents are to undertake a Hair Follicle Tests as follows:
(a)3 months from the date the Final Orders are made;
(b)6 months from the date the Final Orders are made;
(c)8 months from the date the Final Orders are made; and
(d)12 months from the date the Final Orders are made.
and to ensure the results of those tests are provided directly to the ICL.
32.For the purpose of the hair follicle testing both parties:
(a)are not to cut their hair shorter than 3cm;
(b)are not to bleach or dye their hair for the period while testing is required. Should either parent’s hair appear to be bleached or dyed or is shorter than 3cm, then the sample is to be taken from another site on that parent’s body.
(c)The testing shall be conducted at an accredited drug testing facility;
(d)Chain of custody procedures are to be applied to the hair samples collected;
(e)The parent will provide the laboratory with photographic identification to be recorded before each test and the authority to provide the results of each test to the other parent and the ICL upon completion
(f)The results are to be provided to the other parent and the ICL no later than forty‑eight (48) hours after receipt.
(g)Each test shall be for the detection of amphetamine-type substances, cannabis, opiate (including heroin and morphine), extended opiates, sedative-type drugs, cocaine and any other drugs of abuse.
33.Save that the ICL has liberty to apply in relation to these orders during the next 12 months, otherwise all extant applications are dismissed and the matter removed from the list of active pending cases.
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 a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
TREE J:
INTRODUCTION
These proceedings concern the final parenting arrangements for 8 year old X (“the child”) who is the only child born to the parties’ relationship.
For his part, Mr Arteta (“the father”) seeks orders that he have sole parental responsibility for the child, who would live with him and spend three consecutive nights each week in the care of Ms Julini (“the mother”) together with time over school holidays and on special occasions.
On the other hand, as outlined during the trial, the mother seeks (it seems) equal shared parental responsibility, and for the child to live with her and spend daytime only with the father, supervised by a family member. The precise amount of time, and who the family member could be, was never detailed by the mother.
In broad terms, the Independent Children's Lawyer (“the ICL”) supported the position of the father, save that she contended for equal shared parental responsibility.
On 13 February 2024 I reserved the judgment arising from the trial. This is that decision and the reasons for it.
BACKGROUND
The father is presently 43 years of age and a tradesperson. He has two now adult children from a previous relationship.
The mother is presently 34 years of age and is employed in sales, albeit currently on leave.
The parties commenced their relationship in 2014. The child was born 2015. Thereafter the parties separated in either late 2018 or early 2019.
In September 2019, the mother commenced parenting proceedings in the then Federal Circuit Court of Australia, which concluded with final consent parenting orders being made on 14 September 2021.
Over a period of three days in early 2022, whilst the child was in her care pursuant to those orders, on three occasions the mother took the child to the B Hospital, seeking to have her medically assessed in the light of the mother’s belief that the father had sexually abused the child. No signs of abuse were detected by the relevant medical staff, nor is there any record of any disclosure being made by the child, although the mother asserts one disclosure was made but not recorded.
In early 2022, the mother called the Queensland Ambulance Service to attend upon the child, again because of her belief that the father had sexually abused her, although again no interventions ensued.
On 7 March 2022 the father commenced these proceedings in the Federal Circuit and Family Court of Australia (Division 2) seeking urgent interim relief. However, it appears that the Department of Children, Youth Justice and Multicultural Affairs (“the Department”) simultaneously became involved with the family, the outcome being that the child was placed in the father’s care. Thereafter proceedings were instituted by the Department in the Magistrates Court. However, not long after they had done so, a notification was made to the Department that the father was using illicit drugs, which appears to have precipitated a period when the child was placed in foster care. It seems likely that ended around late 2022 when the child was placed in the care of the paternal grandmother, during which the child spent time with both the father (supervised by the paternal grandmother) and the mother (supervised by the maternal grandmother), which arrangement continued until about February 2023.
Thereafter, although not sanctioned by any formal court order, the child lived 4 nights per week with the father and 3 nights per week with the mother, with no requirement of supervision of her time with either parent. That remained the situation at trial.
Post-separation the mother has re-partnered, initially to a man who assaulted her, and later to another man who is the father of her son.
RELEVANT STATUTORY PROVISIONS AND LEGAL PRINCIPLES
The statutory regime
Part VII of the Family Law Act 1975 (Cth) (“the Act”) contains the relevant statutory provisions dealing with children. Section 60B specifies the objects of Pt VII, and the principles underlying those objects in the following terms:
(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).
Section 61DA(1) of the Act provides that the Court must apply a presumption that it is in the best interests of the child for their parents to have equal shared parental responsibility for them. In the event that, either because that presumption applies, or because it is otherwise in the child’s best interests that there be an order providing for equal shared parental responsibility, the court is obliged pursuant to s 65DAA(1) to then consider certain matters, including whether the child should spend equal time with each of the parents, or substantial and significant time.
However s 61DA(2) provides that the presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in either abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family) or family violence. Further, subsection 61DA(4) provides that the presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for its parents to have equal shared parental responsibility.
In this context it is convenient to also advert to s 65DAC, which sets out the effect of a parenting order that provides for shared parental responsibility. By subsection (3) such an order is taken to require each of the persons subject to it to consult with the other person in relation to the decision to be made about any major long-term issue in relation to the child, and make a genuine effort to come to a joint decision about that issue. It can therefore be seen that the obligations which an order effecting equal shared parental responsibility imposes are potentially onerous.
Finally s 60CA provides that in deciding whether to make a particular parenting order, the Court must regard the best interests of the child as the paramount consideration. The matters which a court must have regard to in determining the best interests of a child are set out in s 60CC.
In Mauldera & Orbel (2014) FLC 93-602 the Full Court had occasion to consider the interrelationship between s 60B and ss 60CC. At [72]–[73] the Court applied the principles enunciated in Wacando v The Commonwealth (1981) 148 CLR 1 in concluding that object’s clauses, such as those contained within s 60B(1) can be used as an aid to the construction of words of legislation, but cannot be used to cut down the plain and unambiguous meaning of a provision if that meaning in its textual and contextual surroundings is clear (quoting from S v Australian Crime Commission (2005) 144 FCR 431 at [22] per Mansfield J). At [79] the Court concluded that the primary Judge could not attach greater weight to the factors referred to in s 60B than to the outcome of her s 60CC deliberations, and in doing so, her Honour had erred.
Abuse, neglect and family violence
“Abuse” is defined in s 4 of the Act in the following terms:
“abuse”, in relation to a child, means:
(a) an assault, including a sexual assault, of the child; or
(b) a person (the first person) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is unequal power in the relationship between the child and the first person; or
(c) causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or
(d) serious neglect of the child.
Neither the term “neglect” nor indeed “serious neglect” appears to be defined in the Act. Absent any indication in the Act to the contrary they should therefore have their usual dictionary meanings. I can discern no contrary indication in the Act. The relevant definition of the word “neglect” in the Macquarie Dictionary is “to be remiss in care for or treatment of.”
“Family violence” is defined in s 4AB(1) of the Act in the following terms:
(1)For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the persons family … or causes the family member to be fearful.
Section 4AB(3) provides that for the purposes of the Act, a child is exposed to family violence if the child sees or hears family violence, or otherwise experiences the effects of family violence. Section 4AB(2) and (4) respectively give examples of behaviour that may constitute family violence, and examples of situations that may constitute a child being exposed to family violence.
The standard of satisfaction required
Section 140 of the Evidence Act 1995 (Cth) (“the Evidence Act”) provides as follows:
Civil proceedings: standard of proof
(1)In a civil proceeding, the Court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2)Without limiting the matters that the Court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence;
(b) the nature of the subject-matter of the proceedings;
(c) the gravity of the matters alleged.
In Neat Holdings Pty Ltd v Karajan & Holdings Pty Ltd (1992) 110 ALR 449 at 449–450 the majority of the High Court stated:
The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. On the other hand the strength of the evidence necessary to establish a fact or fact on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary “where so serious a matter as fraud is to be found”. Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a Court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct. …
(Footnotes omitted)
Conduct intended to, or with a risk of, either emotionally or psychologically harming a child, or destroying or impairing a relationship between a child and a parent, is not, of itself necessarily criminal. Nonetheless, an allegation of that kind is potentially a grave one, although whether that will depend upon the facts of individual cases. It is probably idle to seek to arrange conduct in some hierarchy of gravity; rather, what s 140(2)(c) of the Evidence Act requires is that appropriate consideration is given to the gravity of the matter in question in determining whether or not the Court is satisfied of its existence on the balance of probabilities.
Therefore consistent with s 140(2) of the Evidence Act, in taking into account the gravity of the parties’ allegations against each other, I propose to carefully evaluate the evidence relied upon in support of such a contended finding and be particularly vigilant to identify and place reduced weight upon “inexact proofs, indefinite testimony or indirect inferences” (Briginshaw v Briginshaw (1938) 60 CLR 336 at p 362).
The notion of unacceptable risk
It is useful to consider the authorities which give some guidance as to what is an unacceptable risk, and particularly the relationship of any such risk with the orders that the Court is contemplating. A useful starting point is the decision of the Full Court in N & S & The Separate Representative (1996) FLC 92-655, where in the well-known passage at 82,713–82,714, Fogarty J said:
Thus, the essential importance of the unacceptable risk question as I see it is in its direction to Judges to give real and substantial consideration to the facts of the case, and to decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm to the child. Thus, the value of the expression is not in a magical provision of an appropriate standard, but in its direction to Judges to consider deeply where the facts of a particular case fall, and explain adequately their findings in this regard.
In M v M (1988) 166 CLR 69, the High Court had occasion to consider the approach in Family Court proceedings where there are allegations of sexual abuse of a child. At 76–78 the Court said as follows:
But 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. Proceedings for custody or access are not disputes inter parties in the ordinary sense of that expression: Reynolds v Reynolds (1973) 47 ALJR 499; 1 ALR 318; McKee v McKee (1951) AC 352, at pp 364-365. In proceedings of that kind the court is not enforcing a parental right of custody or right to access. The court is concerned 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. In deciding what order it should make the court will give very great weight to the importance of maintaining parental ties, not so much because parents have a right to custody or access, but because it is prima facie in a child's interests to maintain the filial relationship with both parents: cf. J. v Lieschke [1987] HCA 4; (1987) 162 CLR 447, at pp 450, 458, 462, 463-464.
Viewed in this setting, the resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the court's determination of what is in the best interests of the child. The Family Court's consideration of the paramount issue which it is enjoined to decide cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse. The Family Court's wide-ranging discretion to decide what is in the child's best interests cannot be qualified by requiring the court to try the case as if it were no more than a contest between the parents to be decided solely by reference to the acceptance or rejection of the allegation of sexual abuse on the balance of probabilities.
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 [1938] HCA 34; (1938) 60 CLR 336, at p 362. There Dixon J. said:
"The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters 'reasonable satisfaction' should not be produced by inexact proofs, indefinite testimony,or indirect inferences."
His Honour's remarks have a direct application to an allegation that a parent has sexually abused a child, an allegation which is often easy to make, but difficult to refute. It does not follow that if an allegation of sexual abuse has not been made out, according to the civil onus as stated in Briginshaw, that conclusion determines the wider issue which confronts the court when it is called upon to decide what is in the best interests of the child.
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 assessing 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 [1976] VicRp 24; (1976) VR 298, at p 300), "an element of risk" or "an appreciable risk" (Marriage of M (1987) 11 Fam LR 765, at p 770 and p 771 respectively), "a real possibility" (B. v. B. (Access) (1986) FLC 91-758, at p 75,545), a "real risk" (Leveque v Leveque (1983) 54 B CLR 164, at p 167), and an "unacceptable risk" (In re G. (a minor) (1987) 1 WLR 1461, at p 1469). 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.
In Harridge & Harridge [2010] FamCA 445 Murphy J, having referred to N & S & The Separate Representative (supra), proceeded to adopt the following list of inquiries in relation to risk assessment (at [73]):
(1) What harmful outcome is potentially present in this situation?
(2) What is the probability of this outcome coming about?
(3) What risks are probable in this situation in the short, medium and long term?
(4) What are the factors that could increase or decrease the risk that is probable?
(5)What measures are available whose deployment could mitigate the risks that are probable?
I gratefully adopt that passage as helpful in cases such as these in analysing the asserted risk.
In Isles & Nelissen (2022) FLC 94-092 the Full Court clarified that the assessment of risk does not require satisfaction on the balance of probabilities, but rather possibilities may suffice.
THE ISSUES
Overview
No party seriously contended that this was other than a single issue trial, namely what, if any, risk does each party pose to the child, and how, if at all, such risks might be adequately mitigated.
However, resting in the shadow of that risk assessment is the other primary consideration, namely whether the child would benefit from a meaningful relationship with both of her parents, assuming that any risk they pose to her can be properly managed. I describe it as resting in the shade because I did not understand either party to contend that, if any risks can be properly addressed, the child would not benefit from a meaningful relationship with both parents.
Risks posed by father
The mother contends that the father poses such a risk of sexual harm to the child that the Court should not countenance her ever spending overnight time with him, and such daytime as she spends must be supervised.
Little time need be devoted to dismissing that claim as hopeless. The mother conceded that the highest the evidence of such alleged risk caused was an observation made by a Departmental officer in submissions dated mid-2023 seeking permission of the Magistrates Court to withdraw the extant proceedings there. It reads:
11.At the time of filing the amended application for a child protection order … there was evidence that:
…
(b)[the father] behaved inappropriately while caring for [the child] demonstrating behaviours that were associated with sexual grooming;
…
(Affidavit of the mother, filed 5 February 2024, p 39) (footnotes omitted)
The footnote was to an affidavit (presumably of a Departmental worker) filed 8 September 2022, which was not in evidence before me, and exactly what the allegedly grooming behaviours comprised is not clear.
However, the Departmental submissions of mid-2023 go on to recite that which is uncontroversial in these proceedings, namely that thereafter the Department had the father undertake a sexual risk assessment by an independent psychologist which concluded that he was “a low risk of sexual offending” (Affidavit of the mother, filed 5 February 2024, p 39 paragraph 17).
Related to this is the father’s admitted history of illicit drug use whilst the child was in his care. It is said that such use increases the risk of sexual harm to the child, however uncontroversially, the father has over the last 18 months produced numerous clear drug tests, most recently in February 2024, as the result of a random test required of the father by the ICL (Exhibit 1).
Accepting that the risk of harm ensuing to the child if she were sexually abused by the father is high, nonetheless on the evidence before me I assess the risk of him doing so as low, and hence the risk he poses to her as also low. Further mitigation of any residual risk (noting that the family report writer opined that the father is still at risk of relapse for illicit drug use) was proposed by the ICL by her remaining in the proceeding for a further 12 months, during which time she would require the father (and indeed the mother) to submit to a further four drug tests, together with orders restraining both parties from consuming illicit drugs when the child is in their care.
The material could not possibly persuade me to the requisite standard that the father poses an unacceptable risk of sexual harm to the child such that overnight time should not be permitted, or that his time with the child should be supervised in any form. One need only consider that such has been the uneventful prevailing situation for about 12 months now to realise that the risk the mother contends for has shown absolutely no signs of materialising.
Risks posed by the mother
Although expressed somewhat opaquely in submissions, the ICL did not contend that the mother posed an unacceptable risk of harm to the child such that she should not spend time with her, or should not spend overnight time with her. Rather I infer that the ICL recognises that the mother poses some, but not presently an unacceptable, risk of harm to the child, by virtue of her beliefs that the father has historically sexually abused her, and that he remains a risk of doing so again.
For his part, the father did not appear to disagree with the ICL’s formulation of the risk posed by the mother.
The mother appears to have had, and to her credit largely overcome, challenges in her childhood and later life. She may also have some personality features which predispose her to difficulty, for instance the psychiatrist who assessed her for these proceedings conjectured (or perhaps opined) that she may suffer “a […] personality disorder which can occur in the midst of childhood trauma. It can lead to mood dysregulation, great sensitivity towards feeling abandoned or rejected and sometimes self-harm” (Report of Dr C dated 17 August 2022 annexed to his affidavit filed 28 September 2022).
Other explanations for the mother’s unusual presentations at times have been offered by her therapists. It is unnecessary, and indeed not possible, to assign a cause to the mother’s occasionally odd behaviours, but I suspect that her seemingly life-long use of marijuana is a significant contributor, even though she now claims her current and ongoing use is restricted to a medically prescribed drug.
The most colourful instance of the mother’s odd behaviours on the evidence is her attendance at the Town D Police Station in early 2022, arriving there riding in the rain, and thereafter demanding to speak with the officer in charge or the Commissioner of Police. Even if her subsequent presentation to the B Hospital Emergency Department wearing only filthy underwear is because, as she asserts, the Town D police suggested she remove her outer clothing and wrap herself in a blanket, there can be no doubt that the police were sufficiently troubled by her presentation to request that she be examined under the provisions of the Mental Health Act 2016 (Qld).
It seems fairly clear that the mother suffered some kind of event around that time, during which she was fixated on her belief that the father had sexually abused the child. Some of the hospital records suggest that staff suspected the mother was withdrawing from marijuana use, but the evidence does not permit the attribution of any cause.
However, what is significant is that the Department was so concerned about the mother’s involvement of the child in her obsessions that they determined she was in need of protection from the mother, and removed her from the mother’s care.
That said, it cannot be ignored that subsequently, at the behest of the Department, the mother has engaged, and apparently intends to continue to engage, in seeking psychological assistance, to the point that last year, the Department became satisfied that the child was no longer in need of protection from the mother.
The reports of the mother’s therapists make me suspect that they were perhaps provided with an incomplete history by her, but that was not able to be explored as they were not produced for cross-examination.
However, the simple fact is that, for the last 12 months, the child’s living arrangements, split between the two households, have not produced the sort of florid behaviour of the mother demonstrated in early 2022. It bears emphasising that was now two years ago.
It may not be overly professionally satisfying to acknowledge it, but the task of this Court is often to try to cobble together workable parenting arrangements – at times using not much more than sticky tape and glue – until the child is, or children are, sufficiently mature, or have outgrown the jurisdiction of this court. Perfect solutions are often unattainable. This is probably such a case.
Now I do not overlook that, at times in a spirited way, during cross-examination by counsel for the ICL, the mother remained seemingly convinced of the father’s past, and risk of future, abuse of the child, but her combative manner itself suggested to me that the mother was defending her, at times, bizarre historical behaviour, thinking that to do otherwise would harm her case.
It may be yet another case of the triumph of hope over experience, but I suspect that the mother may have moved on from her fixated episodes in early 2022. Certainly she should read these reasons as firmly encouraging her to do so, as her fears or beliefs, whichever they were or are, on the evidence are simply fanciful.
What then is the risk which the mother poses to the child? I assess it as a risk that she may again go through a fixated phase as she did in early 2022, in which she actively seeks to have the child assessed for signs of sexual abuse. But she has not sought to do so in the last 12 months, and in that time has actively sought out psychological supports. Her continued marijuana use – even if, contrary to my suspicions, it now only be restricted to so-called a medicinal drug– is worrying to me, but apparently not the Department. Perhaps if parental marijuana use in Queensland always merited Departmental intervention, the whole child protection system here would collapse, but whatever be the case, the Department is clearly aware of the mother’s long term and continuing use, and is apparently unconcerned. Whilst I remain concerned, I do not assess her drug use to comprise a significant risk of harm to the child, at least at present.
The mother is presently not an unacceptable risk of harm to the child. There is therefore no reason to restrict her time, or the circumstances of her time, with the child, save that there should be an order that she not consume illicit drugs while the child is in her care (and likewise the father too).
OTHER RELEVANT S 60CC FACTORS
No party contended that other relevant s 60CC factors raised issues beyond those addressed above, and having considered them all, I agree, accepting that there is some overlap.
PARENTAL RESPONSIBILITY
These are mutual allegations of family violence levelled by both parents against the other, sufficient to have supported s 102NA orders in respect of them both to be made on 10 November 2023. The presumption of equal shared parental responsibility therefore does not apply.
With the assistance of the parties, during the trial I identified the following points in favour and against in order for equal shared parental responsibility:
Points in favour of equal shared parental responsibility
•It would allow child to benefit in relation to decisions relating to her by having both parents life experience involved;
•It might permit parties to re-establish respectful communication;
•There are not really many major decisions required to be made about the child – with the last remaining milestone likely being the choice of her secondary school.
Points against equal shared parental responsibility
•The parties have no history of joint decision making or effective communication; and therefore
•Equal shared parental responsibility would likely be unworkable mayhem.
The mother has a history of unilateral decision making for the child, and there is no demonstrated history of joint decision making in recent years. To require these parties to do so is a recipe for disaster. Even if the presumption of equal shared parental responsibility applied, I would be satisfied it is rebutted in this case. The party with the greater time with the child should have sole parental responsibility, albeit with an obligation to consult. As it transpires, that person will be the father.
CHILD’S LIVING ARRANGEMENTS
Nobody really contended for an equal care regime, although the family report writer postulated it on one scenario.
The simple fact is that there are an odd number of days in a week, and although one could effect equal care by a 3/4/4/3 arrangement over a fortnight, it will likely be a muddle for the child – and perhaps the parents too – to remember which week is which. Nobody suggested a 7/7 division.
As I have already alluded to, there is likely no perfect outcome. Again with the assistance of the parties, at the trial, I identified the following points as respectively favouring and against the father’s proposal:
Points in favour of father’s proposal
•It substantially reflects the demonstrably successful current regime;
•It allows child to experience living in both households and derive benefit from meaningful relationship with both her parents;
•To a degree it balances the risks of both households by allowing the child to move between them, and hence permits a degree of knowledge of each party’s situation.
Points against father’s proposal
•It will not allay mother’s concerns, with the risk that the allegations will re-surface;
•It exposes child to the risks associated with both parties’ households.
Likewise I identified the following points as favouring and against the mother’s proposal:
Points in favour of mother’s proposal
•It will likely mollify her;
•It will potentially wholly negative any risk posed by father to child.
Points against mother’s proposal
•It will not facilitate an optimum relationship between father and child, and perhaps not a meaningful one either;
•It likely is a drastic over-reaction to such risks as the father poses;
•It does not in any substantial way protect the child from the risk which the mother poses to her;
•It may see the mother restrict the time which the child spends with father, eg, if it clashes with the extra-curricular activities the mother wishes the child to engage in.
The simple fact is that, perhaps amazingly, without orders the parties have hit on an arrangement to share the child’s care which has worked for about the last year. The mother says her proposal would work better, but that is untested and in any event unwarranted. I propose to go with what is presently working, in part because since it isn’t broken, I don’t see any utility in trying to fix it. Such an arrangement is plainly in the child’s best interests.
There will be orders as the father and ICL proposed for the child’s living arrangements.
OTHER ORDERS
The ICL proposed that the mother be required to continue to seek psychological assistance, but I am not satisfied that her time with the child should be so conditioned. Otherwise I am satisfied that the orders proposed by the ICL are in the child’s best interests and will pronounce them.
CONCLUSION
For these reasons there will be orders as set out at the commencement of this judgment.
I certify that the preceding sixty-nine (69) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Tree. Associate:
Dated: 28 February 2024
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