Attwell and Attwell

FEDERAL CIRCUIT COURT OF AUSTRALIA

ATTWELL & ATTWELL

[2017] FCCA 3197

Catchwords:
FAMILY LAW – Parenting – whether a child aged 9 should spend time with her father – where the father has not seen the child for four years – where the father has been convicted of filming and attempting to film the child’s older half-sister in a private act and is on the Child Protection Register – where the father maintains that he has addressed his problems of voyeurism and viewing pornography and poses no risk of harm to his daughter – where the child’s half-sister made much more serious allegations about the father but where a jury failed to convict him of any other offences – where the mother believes the additional allegations and opposes the child spending time with the father on the basis that she may be at risk of sexual harm if she does so – assessment of risk – extent to which the court should take into account the impact on the mother and step-daughter of an order for the child to spend time with the father.

Legislation:

Family Law Act 1975 (Cth), ss.60CC, 61DA

Cases cited:

Johnson & Page (2007) FLC 93-344

M & M (1988) FLC 91-979

Applicant:

MS ATTWELL

Respondent:

MR ATTWELL

File Number:

NCC 564 of 2014

Judgment of:

Judge Terry

Hearing dates:

22, 23 & 24 August and 28 November 2016

Date of Last Submission:

2 February 2017

Delivered at:

Newcastle

Delivered on:

22 December 2017

REPRESENTATION

Counsel for the Applicant:	Mr Sharrock
Solicitors for the Applicant:	Ashby Family Solicitors

Counsel for the Respondent:

Mr Levick

Solicitors for the Respondent:	Braye Cragg Solicitors
Solicitor Advocate for the Independent Children's Lawyer:	Ms O'Rourke
Solicitors for the Independent Children's Lawyer:	Legal Aid NSW Newcastle

ORDERS

The mother shall have sole parental responsibility for the child X born (omitted) 2008.
The child shall live with the mother.
The child shall spend no time with and have no communication with the father.
The mother may obtain a passport for the child and travel internationally with the child or permit the child to travel internationally notwithstanding that the consent of the father has not been obtained.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT NEWCASTLE

NCC 564 of 2014

MS ATTWELL

Applicant

And

MR ATTWELL

Respondent

REASONS FOR JUDGMENT

Introduction

X aged 9 has not spent time with her father for over four years, and the issue in the case is whether and if so under what circumstances she should resume spending time with him.
In April 2015 the father pleaded guilty to one count of filming and one count of attempting to film the child’s older half-sister A in a private act. He was sentenced to four months imprisonment for the first offence and placed on a two year good behaviour bond in respect of the second offence.
The father was acquitted of two counts of aggravated sexual intercourse with a person over 10 and under 14 years of age and four counts of indecent assault of a person under 16 years. The jury could not agree about whether he was guilty of charges of grooming a child for unlawful sexual activity and committing an act of indecency with a person under 16 years. The Crown elected not to seek a re-trial in respect of those charges.
The mother proposed that X spend no time with and have no communication with the father in the future. It was her case that X would be at risk of sexual harm if she spent unsupervised time with the father and that supervision by family members would not remove the risk.
The mother said that she was also concerned about the psychological impact on X of moving between her home, where there is a certain state of belief about the father, and the father’s home, where there is a denial of the extent of his offending and mild anger at A for making things up but it is fair to say that underlying the mother’s case was simply a general opposition to X spending time with a man who has caused such hurt and harm to his family.
The father admitted filming or attempting to film A on three other occasions besides the ones for which he was convicted but he was adamant that nothing more had ever happened. He said that he had undergone extensive counselling since he was caught in 2012 and it was his case that although he would always need to be on guard against his propensities, he was able to control his behaviour and X would not be at risk of harm in his care.
It was the father’s case that X historically had a good relationship with him and that she would benefit from resuming spending time with him so that she had two parents in her life.
The father proposed that initially X spend time with him during the day only supervised by his mother or his wife to get her used to spending time with him again but that time fairly rapidly move to each alternate weekend and half of the school holidays unsupervised.
In closing submissions the Independent Children’s Lawyer proposed that the father spend no time with X and have no communication with her save for being permitted to send her letters cards and gifts.
The Independent Children’s Lawyer proposed that in the alternative if this proposal was not accepted by the court, the child spend time with the father one day per month supervised by the paternal grandmother at her home.

The evidence

The mother relied on her initiating application filed on 10 March 2014 and her affidavit filed on 28 July 2016.
The father relied on his response and affidavit filed on 3 August 2016 and the affidavits of the paternal grandmother Ms D and his wife Ms E also filed on 3 August 2016.
The father attached to his affidavit a document headed “Declaration concerning Mr Attwell” signed by Mr M, a Psychologist, and a report dated 16 March 2015 prepared by Dr S, a Forensic Psychiatrist. These were admitted on the basis that Mr M and Dr S would be made available for cross-examination.
A Family Report was prepared by Ms T, a Regulation 7 Family Consultant.
All of the witnesses were cross-examined.
The parties were ordered to file written submissions and the final submission was filed on 1 February 2017.
I apologise to the parties for the delay in the delivery of this decision. As always it has come about because of the pressure of work in this registry and my choice to prioritise certain decisions over others.

Background

The mother and father are (nationality omitted). They met and commenced relationship in 2000 when the mother was 25 and the father 24 and married in (omitted) 2004.
The mother has a daughter, A born (omitted) 1996 who was aged four when the parties commenced cohabitation. She became part of the household and the father treated her as his daughter and she called him Dad.
In (omitted) 2004 the parties immigrated to Australia. They became Australian citizens in (omitted) 2007 and their daughter X was born on (omitted) 2008.
The father was an (occupation omitted) in (country omitted) and continued in this occupation in Australia. The mother studied (omitted) in Australia and was (employment omitted) in (omitted) 2011.
I am satisfied that the mother was the children’s primary carer during the relationship but I am also satisfied that the father was involved in their care to a greater extent that the mother is now willing to admit. At trial the mother was disparaging of the father’s efforts at home but she left the children in his care for two weeks when she went to (country omitted) in 2010 and I consider it more likely than not that her view of the past is coloured by what has happened since 2012.
The children and the parties were to all outward appearances living a happy life until 8 March 2012.
On 8 March 2012 the mother had day surgery and when she got home she took some painkillers and went to sleep. She woke several hours later to the sound of A screaming. She said that the father came into the bedroom and said words to the effect of:
I fucked up. I really fucked up.[1]
[1] The mother’s version of what happened on 8 March 2012 as set out in paragraphs 22 to 28 is not contentious as to what each party and A did and said on that day
She said that he went on to say words to the effect of:
I waited til you were asleep and I went outside and took a video of A while she was in the shower and she saw me through the window.
The mother said that she was shocked and went into A’s bedroom and found A crying and distressed. A said to her:
Mum I saw him through the bathroom window and Mum this is not the first time.
The mother said that A told her that the father had previously come into the bathroom and taken naked photos of her and forced her to “pose” when the mother left A in his care in 2010. A told her that the father had asked her to keep it a secret.
The mother said that she confronted the father and told him that he had to leave, they were getting divorced and he was going to jail. She said that the father replied that he was sorry but he just couldn’t help himself.
The father left the home that night.
The mother rang her mother in (country omitted) and asked her to come to Australia to support her as the mother had just started a new job and feared that after what had happened she might not be able to concentrate at work. The maternal grandmother flew to Australia immediately but the mother was so stressed that two weeks later she resigned from her job.
Over the next three weeks the mother and father remained in contact. The father repeatedly apologised for what had happened and asked for another chance and at the end of March the mother invited him to return to the home. He slept downstairs but on the second night A had a panic attack and said that she hadn’t told her mother everything and became hysterical.
The mother arranged for a counsellor to come to the house and at the counsellor’s urging she told the father that he could not stay. The father moved out again.
The mother continued to permit the father to see X.
The mother decided to return to (country omitted) and with the father’s consent she flew there with the children in (omitted) 2012. It was the mother’s intention to stay in (country omitted) indefinitely but she kept in touch with the father who remained in Australia.
In June 2012 A wrote a letter accusing the father of taking photos of her in the bath when she was 7, keeping naked photos of her aged 7 in his bedside table and washing her breasts and vagina in the bath when she was 10.
The mother told the father about the allegations and the father denied that there was any truth in them.
In (omitted) 2012, A told the mother that she wanted to return to Australia and finish school there and the mother agreed that A would return and live with the family of a close friend.
Toward the end of 2012, the father travelled to (country omitted) and spent about a month with the mother and X. The maternal grandmother arranged for A to visit her biological father while the father was in (country omitted).
A returned to Australia in (omitted) 2013. The mother missed her and began making plans to return to Australia as well and the father agreed to assist her financially to do so.
The father appears to have had hopes that upon the mother’s return to Australia, he and the mother might reconcile but after the mother returned in (omitted) 2013 she made it clear to him that this would not happen.
The mother did however permit the father to spend time with X on a regular basis for a few hours with the paternal grandmother present until (omitted) 2013 when she sought advice from a solicitor and after obtaining this advice informed the father that she no longer consented to him seeing X.
In September 2013 A, then 17, asked to be taken to the police station to make a statement about the father and she made a statement with a support person (not the mother) present. Police applied for an ADVO for her protection and in November 2013 the father was charged with two counts of aggravated indecent assault, one count of committing an act of indecency and two counts of film private parts without consent.
The father initially intended to contest the ADVO and A had to attend the Local Court and saw him there. However he subsequently consented without admissions to an order being made and in November 2013 an ADVO was made for A’s protection for two years.
At or about this time A told the mother that more had happened than she had previously disclosed and that when the mother was in (country omitted) in 2010, the father had chased her into the bedroom, ripped the towel off her, lain on top of her on the bed and raped or attempted to rape her.
The father was subsequently charged with two counts of aggravated sexual intercourse.
The charges against the father were first before the District Court in February 2014.
In March 2014 the mother filed an application in this court seeking parenting and property orders. She proposed that X live with her and spend no time with the father. The father sought an order on a final basis that X spend alternate weekends and half school holidays with him but he did not seek interim orders and the parenting matter was adjourned pending the outcome of the District Court proceedings.
The father’s trial took place in February 2015. He pleaded guilty to one count of film a person in a private act and 1 count of attempting to film a person in a private act and pleaded not guilty to other charges. The mother and A gave evidence at the trial, the outcome of which was noted earlier.
Following the father’s release after serving his four month sentence a family report was ordered. The report writer recommended that X spend no time with her father. The father did not accept this recommendation and the matter was listed for trial.

The parties current circumstances

The mother lives on the (omitted) with X and A. There was no evidence that she had re-partnered. In her trial affidavit she said that she was in the process of setting up a (business omitted) with a friend.
X attends (omitted) Public School.
A is attending university and is doing a (course omitted) and is working part time in (occupation omitted). The mother said that A went through considerable pain as a result of the offences and then the criminal process but had come through it and was moving forward with her life.
The father is an (occupation omitted). He lives in rented accommodation on the (omitted) with his wife Ms E. The father met Ms E through (omitted) and commenced a relationship with her in (omitted) 2015 and they later married.
The father’s parents immigrated to Australia in 2009 and they also live on the (omitted).

The father’s offending and its aftermath

In his trial affidavit the father admitted that when the mother was in (country omitted) in 2010, he entered the bathroom when A was in the shower and asked if he could take a naked photo of her. He alleged that A said no and pushed past him and ran to her bedroom. He said that he followed her and allowed her time to get dressed and showed her the camera to demonstrate that he had not taken a photo of her.
At the time of this incident A had recently turned 14.
The father said that on 8 March 2012 he waited until the mother was asleep and spied on A and filmed her while she was having a shower by holding his mobile phone at the window. He said that A saw the phone, screamed and ran out of the bathroom. He admitted telling the mother that he had fucked up. He said that he also admitted attempting to take a photo in 2010.
During the trial before me it emerged that the father admitted that he had filmed A on three other occasions. He said that he asked for additional offences to be taken into account when he was sentenced in 2015.
The father admitted rubbing cream into A’s chest in 2010 when she was ill but said she asked him to do so and there was no sexual impropriety involved. He denied the allegations that he had touched her in the bath and rubbed her vagina, squeezed her breasts while putting the cream on her chest or done anything else of a physically intrusive nature.
He denied that he had lain on top of A in 2010 or done anything else to her. He admitted that he used the photographs he took between 2010 and 2012 for sexual gratification but denied taking a photograph of A when she was 7.
The day after the father left the home in March 2012 he arranged to see a counsellor, Mr R. He said that he knew that he was struggling with “voyeurism and pornography”[2] and he also began attending a group called Sex and Love Addicts Anonymous (SLAA) and attended three meetings a week at three different locations and received telephone support. He said that he found the group helpful and over the next six months stopped viewing pornography and revealing movies. He said that he continued to attend SLAA meetings until his incarceration in April 2015.
[2] Father’s affidavit paragraph 40
The father said that in April 2012 he began attending church and found god and now attended church every Sunday.
In August 2012 the father wrote a long letter to the mother attempting to explain what had happened. He told her that he had felt under pressure and felt socially isolated at school and that he started to masturbate when he was 10 which provided him with relief from the issues in his life. He said that at 10 or 11 he became voyeuristic and fixated on naked women and began spying on fully mature women and girls of his own age.
The father said as follows:
I never had any desires to see A until I had to go into the bathroom to fetch X, at first it was very awkward then things relaxed but I could not stop myself from looking, with my past, I was fucked. So that was the first time I spied. Later on we got the spa you and her would wrestle and pull each other’s tops off, that was very difficult for me, there was a programme you and I watched when we still lived in SA and the girls would wrestle in jelly and that’s what I saw in my head when you two wrestled.
In the letter the father said that there was no doubt there was a lot of sexual tension between A and himself. He told her that he was attending SLAA and was “battling hard with his recovery.”
Between March 2013 and September 2013 the father attended a course in Sydney called “(omitted)” which dealt with sex addictions. He said that through “(omitted)” he began to see the women in pornography as people, not sex objects. He said that he also learned about boundaries.
The father was charged in November 2013.
In March 2014 the father had software installed on his computer to filter and block any images or attempts to view pornographic material and websites.
In August 2014 the father began seeing Mr M, a psychologist, for ongoing treatment for what he described as his psychosexual addiction.[3] He said that Mr M helped him deal with and overcome his difficulties with pornography and voyeurism.
[3] Father’s affidavit paragraph 65
The father said that he had also attended a 9 month course called Celebrate Recovery based on the 12 steps of recovery and was able to look back on his life.
Following his convictions the father was referred to Dr S for assessment. Dr S prepared the report dated 16 March 2015 for the solicitor representing the father in the criminal proceedings and assessed among other things the father’s risk of recidivism
The father was placed on a two year good behaviour bond as a result of one of his convictions and as part of his bond was required to attend group therapy sessions with (omitted). Once he started to attend those sessions he ceased to attend the SLAA group. At trial he said that he would be willing to recommence attending SLAA meetings once his bond expired. He said that he also intended to seek a referral to another psychologist, Mr M having retired.
The father said that it was a condition of his Good Behaviour Bond that he have no contact with children without a responsible adult present and that his mother Ms D and wife Ms E were deemed responsible adults.

The bond expired in April 2017 and is no longer relevant but what is relevant is that as a result of his convictions, the father was placed on the Child Protection register for 15 years ending in September 2030. He is not allowed to work with children and he has to report to the police once a year about a range of matters and keep them advised of his living arrangements. He must email police if he is intending to attend a school or park. He said that he was allowed to attend school functions although the police had recommended that he let them know by email what events he proposed to attend.

X’s best interests

Any orders I make about X must be orders determined by treating her best interests as the paramount consideration and s.60CC(2) and (3) of the Family Law Act contain the matters to which I must have regard in order to determine her best interests.
The primary considerations in s.60CC(2) are:
(a)the benefit to the child of having a meaningful relationship with both of her parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to or exposed to, abuse, neglect or family violence.
S. 60CC (2A) provides that in applying the considerations in s.60CC(2), the court is to give greater weight to the considerations set out in paragraph (2)(b),
The tension in the case is largely between the two primary considerations. Self-evidently, X will not have a meaningful relationship with her father if she spends no time with him and I must determine whether there is an unacceptable risk of harm to X if she spends time with the father, noting however that additional issues in the case are whether any risk can be ameliorated by supervision of the father’s time and the extent to which the court should take into account such things as the impact on the mother and A and the child’s relationships within her primary family unit of the court making an order for the child to spend time with the father.
Before dealing with the primary considerations, however, I intend to make findings about the additional considerations and the first of those is any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to those views.
When the family report interviews were conducted in December 2015, X had not seen her father for over two years and had not been given any explanation for why she was not seeing him.
The family report writer said as follows about her conversation with X:
When asked if she thought she might see the father again, X said “I am going to see him when I’m eighteen or nineteen” and when asked why she has to wait until this age, X said “Mum won’t let me see him” and when asked how this makes her feel, X said “very upset, like my Mum should go to prison or something.”
The family report writer went on to say:
When asked if she feels angry with the mother for not letting her see the father, X said “no cause it’s the law.” X then became tearful and cross stating “I want to see my father, it’s not fair, it’s very hard, it’s not fair.”
When asked if she loved the father, X said she does and when asked if she found out the father did something wrong or naughty whether she would still feel this way, X said “I will still love him and want to see him.” When asked if she thought the father loves her, X said “I think he does.” When asked if the judge said she could start seeing the father again how she would feel, X said “I would feel great.”^[5]
[5] Family Report paragraph 84 and 85
The family report writer rightly pointed out that in the circumstances of this case weight could not be given to X’s views and that the outcome of the matter would depend on other considerations. She said as follows:
Even though X is able to state her clear views regarding future spending time arrangements with the father, she is not aware of the crimes the father has committed against A and is not mature enough to appreciate any potential sexual and psychological risk the father may pose to her, if she spends time with him in future.[6]
[6] Family Report paragraph 86
One of the recommendations made by the family report writer was:
That the mother seek the assistance of a therapist registered with Medicare, with expertise in child sexual assault, to explain to X, age appropriately, the nature of the father’s offences against A, and the potential sexual and psychological risk for X if she were permitted to spend time with the father.
However, shortly after the release of the family report the mother decided to tell X what had happened without the assistance of a therapist and the information she gave her was not just about the father’s convictions but about A’s allegations, including that the father had raped A, although the mother said that she conveyed this information in way she thought X would understand.
At trial the mother said that since then X had declared that she did not want to see the father. However no independent evidence was given about X’s views either by the Independent Children’s Lawyer or otherwise and while I do not consider the mother a dishonest witness, I cannot discount such possibilities as the mother having inaccurately reported what X has said, X saying something to the mother which does not represent her true feelings or X’s views being more nuanced than the mother’s evidence might suggest it.
I must consider the nature of the child’s relationship with each of her parents and any other person including a grandparent of the child.
X has a close relationship with her mother and her sister A. She also has a good relationship with her maternal grandmother who continues to live in (country omitted).
It seems certain from what X said to the family report writer that she historically had a good relationship with her father and the fact that the mother facilitated her seeing the father and speaking to him for the first twelve months after the father’s offending was discovered suggests that the mother accepts that this was the case. However X does not have any relationship with the father at the moment; at the time of trial she had not seen him for three years. She has never met his wife Ms E.
Historically, X had a good relationship with her paternal grandparents and she spent time with the father supervised by the paternal grandmother between March and June 2013. However she has not seen the paternal grandparents since her time with her father ceased in June 2013 and she has no relationship with them at present.
I must consider the extent to which each parent has fulfilled, or failed to fulfil, the parents’ obligations to support maintain the child.
The father paid the mother $3,000.00 per month to assist with the support of herself and X from the time he moved out in 2012 until November 2013. He reduced the payment to $630.00 per fortnight thereafter and continued to pay for the loan on her car. At the time of trial he was paying $460.00 per fortnight.
I must consider the extent to which each parent has taken or failed to take the opportunity to participate in making decisions about major long-term issues in the relation to the child, to spend time with the child and to communicate with the child.
This consideration does not assist me.
I must consider the likely effect of any change in the child’s circumstances including the likely effect of her separation from either of her parents or any other child or person including any grandparent or other relative of the child with whom he or she has been living.
In the absence of independent evidence about X’s views, I cannot determine the likely effect on her of an order that she spend time with the father from the perspective of it being congruent with her wishes. She may be hostile to the father as a result of what she has been told or she may not being because she has compartmentalised what she has been told happened to A from her own feelings about the father and she may or may not be because she is repulsed by his offences both as to what he did and what he is alleged to have done.
The father said that X would benefit from a change which resulted in her spending time with him because they historically had a good relationship, he was a loving father and a productive member of the community and had much to offer X and she had no other male role model in her life and her counselling notes from the (omitted) Clinic revealed that she missed having a male figure in her life and sought out the company of adult males.
In a general sense, all these things are true but there are many potential detriments for X in an order that she spend time with the father.
The mother was concerned about the possibility that X may be isolated from her peers or even ostracised by them if they or their parents learned about the father’s offending and learned that X was spending time with him.
The family report writer, speaking at a time when X was keen to spend time with the father, was also concerned about the wider ramifications of X spending time with the father. She said as follows:
If the father's time is supervised by an appropriate supervisor in future, this may be a protective factor for X regarding her sexual safety however the potential significant negative psychological impacts on X, of spending time with the father, need to be considered. It is highly likely that X will experience a degree of social isolation from her peers and may be the brunt of rumour and bullying when her school community becomes aware of the father's offences and his placement on the Sex Offenders Register. Whether X spends time with the father or not it is imperative that she is told, age appropriately, of the father's offences against A and that this is the reason why she has not been/will not be able to spend time with the father. When X reaches an age when she is fully able to understand the nature of the father's offences against A, it is highly likely that this will cause significant confusion and psychological distress for X as she tries to marry her love and affection for the father with her anger and distress regarding his offences.
There is force in these observations.
The father’s counsel submitted that X may experience bullying and teasing at school if the offences the father had been convicted of became known regardless of whether she saw the father or not and that this consideration should therefore not deter the court from ordering that X spend time with the father. However it is in my view trite to say that the situation would be much tougher for X psychologically if she was teased while also seeing the father.
The father’s counsel did not address the issue squarely raised by the family report writer that X might find it difficult to move between the two households. In oral evidence the family report writer expanded on this and described how difficult it could be for X to move between:
…a home where everyone thinks Dad is wonderful and a home where nobody thinks he is wonderful.
There is no doubt that an order for X to spend time with the father would be difficult for the mother to deal with. The family report writer said as follows:
The mother claims both she and A will continually be anxious at any time X may spend with the father and on X’s return will be vigilant in identifying anything concerning. The mother said she will worry all the time and “if something happens to X, I’ll feel guilty all over again.” The mother also states she is concerned that if X returns home from spending time with the father and is excited and happy about her relationship with the father, the mother and A will be under constant stress to pretend to be pleased and excited for X. The mother claims she is concerned that “it would kill A and might put her right back psychologically, she’s come so far, I don’t want her to go down again psychologically.”^[7]
[7] Family Report paragraph 40
However, although the mother said that she would be anxious and I accept that this would be the case, there was no evidence from a psychologist or the like that her parenting capacity would be affected if an order was made for X to spend time with the father.
A remains an integral part of the mother’s household. She was deeply affected by the father’s treatment of her. She had a panic attack when the mother tried to introduce the father back into the home a few weeks after the offending was revealed. The mother admitted that A was hurt and felt betrayed when the mother invited the father to visit her in (country omitted) and allowed him to stay in her house while A was visiting her biological father.[8]
[8] Family Report paragraph 34
A attended the family report interviews in December 2015 and the family report writer said as follows:
When asked how she would feel if the court ordered that X spend time with the father, A said this would concern her greatly and she would suffer constant anxiety, as it is her firm belief that X would be at sexual risk in the father’s care. A also claims she would be hypervigilant and paranoid each time X returned home, as A would be looking for signs of abuse. When asked if there was anything else she would like the court to know, A said “I just love my sister and want to protect her.”[9]
[9] Family Report paragraph 91
It is true that in determining an outcome in this case I must have regard to X’s best interest, not A’s or the mother’s, but the fact that they would be worried about X if she spent time with the father and would find it impossible to support the relationship has implications for X and her happiness and security within her family if time is ordered.
One highly likely outcome of the mother and A being anxious is hypervigilance and a risk that they will cease to comply with orders because of real or suspected issues with the father’s behaviour.
I must consider the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis.
This is not a relevant consideration.
I must consider the capacity of each parent and any other relevant person including a grandparent of the child to provide for the needs of the child including her intellectual and emotional needs.
The mother is doing a good job parenting X on a day to day basis. She has no criminal convictions, drug and alcohol issues or mental health issues.
The family report writer was critical of the mother for allowing the father back into the house briefly a few weeks after the offending first occurred and for allowing him to spend time with X between March 2012 and June 2013. However the mother found herself in unchartered territory after the disclosures were made. It took time for her to process what had happened, to emotionally disentangle herself from the relationship with the father and to appreciate the impact on A of what had occurred. The mother acknowledges and regrets that she was not as fully supportive of A as she might have been in the early days.
The mother did not make a complaint to police in March 2012 and the family report writer pointed out to her that this potentially left other children at risk of harm. However the mother’s focus was on her own children and I do not consider that she failed to report the matter because she wanted to cover up for the father, rather again she just found herself in unchartered territory.
The mother was criticised at trial for the way she handled telling X about the father’s offending. The father’s counsel was particularly critical of her for telling X that the father had raped A.
It is regrettable that the mother did not heed the recommendations in the report that a therapist be involved when X was told what had happened, but as for what she was told, the difficulty is that the mother believes A and what X was told was always going to be a vexed issue.
The family report writer did not suggest that the child only be told about the father’s convictions and it would require superhuman restraint for the mother to be satisfied with X receiving only the version of events the father would like her to have. I also cannot necessarily be satisfied that this would be in the child’s best interests. At some point in her life she will need to understand the complexities within this family.
In any event, whatever criticism is made about the mother’s actions in December 2015, the horse has bolted and the situation cannot be undone.
The father has the capacity to provide for the child’s day to day needs and he could attend to her educational needs.
The father will have a problem dealing with the child’s emotional needs however in circumstances where he has one version of events about his offending and the mother and A a sharply different one.
The father has a somewhat blunted capacity to provide for X’s emotional needs in that he still has moments when he tends to blame A for what has happened in terms of the charges he faced. He also made no bones about at trial that he would, sensitively he claimed, try to make sure that X accepted his version of events rather than A’s about the extent of his offending.
The family report writer was of the view that the father lacked empathy. She said as follows:
The father is also assessed a self-focussed evidenced by, when asked what he thought the impact was on A of his sexual offences against her, the father talked at length about the impact on him, of A's allegations against him. The father is assessed as having little ability to have empathy (which is the cornerstone of attuned parenting) for persons other than himself.
In his closing submissions the father’s counsel was highly critical of the family report writer for her view that the father lacked empathy and submitted that this was contrary to the weight of the evidence. In support of this submission he referred to a number of passages from Mr M notes which he said showed that the father had empathy for A, the mother and X. [10]
[10] Father’s counsel’s submissions paragraph 135
Empathy is defined as the ability to share and understand the feelings of another and none of the utterances to which the father’s counsel referred demonstrate that the father has empathy.
The father’s focus in all of the passages his counsel referred to is on himself. He says variously that he has failed as a father, that he sees what he has thrown away, that he has lost his wife and that he has lost his whole family. He uses the word “I” fifteen times and the words “me” or “my” seven times. The only non-self-focussed utterance is that A “has the right to feel I abused her trust”.
None of those utterances in any way undermine the conclusion of the family report writer that the father lacks empathy, and if that is the best the father’s counsel can come up, and I have to assume that it is, it amply reinforces the family report writer’s opinion.
One of the implications of the father’s lack of empathy is the relevance it has to the risk of the father offending against X and I will discuss this further later in the judgment. Another implication of it is that it gives rise to concern about whether despite all his protestations that he would not do so, he might if given the opportunity press upon X his version of events about the offending and his view that A has told lies.
The father’s wife Ms E would be part of the child’s life if she spent time regularly with the father. Nothing adverse is known about Ms E.
I must consider the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents and any other characteristics of the child that the court thinks are relevant.
There is nothing relevant under this heading.
I must consider any family violence involving the child or a member of the child’s family.
The only family violence was the offending against A and this has been dealt with in other sections of the judgment.

I must have regard to whether there are any family violence orders in place and the implications of that.
An ADVO was made for A’s protection in October 2013 and a final ADVO was made for her protection for two years in November 2013. It has since expired.
I must consider the attitude to the child and the responsibilities of parenthood demonstrated by each of her parents.
The father’s counsel and the Independent Children’s Lawyer were strongly critical of the mother for telling X not only about the father’s convictions but about A’s allegations and insofar as the mother’s actions coloured X’s perception of the father and her willingness to see him (not that there was any evidence about this besides the mother’s) it was their case by implication that the mother had shown a poor attitude to the child and the responsibilities of parenthood.
I have dealt with this issue already and while the matter could have been better handled, I do not consider that the mother’s actions demonstrate a poor attitude to the child or the responsibilities of parenthood.
I must consider whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child.
There is absolutely no doubt that it would be preferable to make such an order. The parties have been under intense pressure since 8 March 2012, five years ago now. The parties and A were involved in Local Court proceedings in respect of the ADVO application and proceedings in the Local and District Courts in respect of the criminal charges in the District Court and the case in this court commenced in 2014.
It is often difficult to predict which order will be least likely to lead to further proceedings but in my view that order in this case is an order for no time.
There is a considerable risk that an order for time will lead to the matter returning to court. Even if the father does not reoffend, and for reasons to be given later, I cannot exclude that possibility, there is a considerable risk that because of the mother’s attitude to the father and her feelings of guilt about not supporting A she will either subtly undermine X’s time with the father making that time a far from happy experience for X, find it hard to support the orders and use any excuse not to do so and even refuse to comply, or stop time because she is hypervigilant and assumes that something has gone wrong even when it hasn’t.
I must consider any other fact or circumstance which the court thinks is relevant.
One relevant matter is that if X does not spend time with her father, she is unlikely to have a relationship with her paternal grandparents in the future.
The Independent Children’s Lawyer emphasised in submissions that they were the only grandparents the child had in Australia. The mother once had a civil relationship with the paternal grandmother but there is nothing to suggest that they are likely to be able to co-operate in the future so that X can see her grandparents if she does not see her father.
Another relevant matter is that the paternal grandmother said that she was willing to supervise time between the father and X. She said that she was aware of her responsibilities to be present and to be vigilant and that she would contact the mother if she observed anything of concern.
Supervision by family members if it is effective has a lot to be said for it because it allows a child to spend more time with a parent than a contact service can offer and to do so in a much more natural way. The child may not even feel that the time is being supervised. However the court always needs to consider whether supervision by family members who bring their own emotions and loyalties to the situation will be effective to guard against the perceived risk.
The paternal grandmother loves X but she does not believe the more extensive allegations made by A and perhaps more to the point, it is unclear exactly how she feels about the offending for which her son was convicted and about the risk that he may offend in the same way against X.
She does not believe the father’s assertions about what happened between himself and his sister in (country omitted) and therefore may not understand the full extent of the problem the father faces coping with his urges.
A particular concern is the nature of the offending for which the father was convicted, namely taking surreptitious photos or videos. He said that he did it on 8 March 2012 when he believed that the mother was asleep.
Family members need to sleep and they are not going to stand next to the child in the bathroom, not without the child protesting. The Independent Children’s Lawyer proposed that if the paternal grandmother was the supervisor then the child should be at her home during that time but did not propose that the father not be at the home or sleep at the home.
It only takes a moment for this sort of offending to occur and it is no protection for X that the paternal grandmother is willing to tell the mother if she discovers the father offending.
In my view, if there is a risk of the father offending against X, then the only appropriate supervision would be professional supervision which takes place for limited periods and in circumstances where the child is never left alone.
The father’s wife Ms E also said that she was willing to be a supervisor if supervision was required. The Independent Children’s Lawyer did not explain why she was not considered an appropriate supervisor but the same considerations apply to her as a supervisor as apply to the paternal grandmother.
At this point I must return to the primary considerations.
The first primary consideration is the benefit to the child of having a meaningful relationship with both of her parents.
It will be a loss to X if she is unable to have a relationship with her father. She had a good relationship with him until separation and she continued to see him until June 2013, over a year after separation. She expressed anger during the family report interviews in December 2015 about the fact that she was not seeing him, and despite what the mother says, I am not necessarily convinced that her knowledge of what has happened with A would have entirely expunged her feelings for him.
The father is an educated man who does not have drug and alcohol problems and who would be capable of providing day to day care of X and doing some enjoyable activities with her.
The notes from the (omitted) Clinic where X attended for counselling refer to her missing having a male role model in her life and seeking out men in and outside school. An order preventing X having any relationship with her father could have unforeseen consequences.
I must however consider and give priority to the need to protect the child from abuse.
The father’s case was that with all the therapy and courses he had done there was no risk that he would abuse X.
It was his case that if the court took a different view and felt that X was at unacceptable risk of harm from him, the risk could be sufficiently guarded against by an order that his time with X be supervised by family members.
The difficulty for the father with the second proposition is that he filmed A surreptitiously in March 2012. The offence occurred at night. The mother was asleep in her room and A was in the shower. I do not accept that supervision by family members would adequately protect against a risk of something similar happening to X if the father remained the person he was in 2012, remembering that the father himself told Mr M in 2013 that he was concerned that he might offend against X.
The focus must therefore be on whether the risk of the father doing something unacceptable has abated because of all the courses and therapy he has done and the place where he now is in his life.
Mr M had a professional relationship with the father between 22 August 2012 and 31 March 2015. He felt that the father was capable of change in the form of being able to control his urges. He said as follows:
[For change to occur the] client must be highly motivated to change and this motivation must arise out of a deep remorse and regret for the hurt and harm that has been done to others, a strong desire to be free from the compulsive power of the addiction and a sense of personal helplessness to be able to do anything about it.
I discern from my case notes that each of these elements were present in Mr Attwell when we began treatment and remained constant throughout.[11]
[11] Paragraphs 7 & 8, Mr M’ declaration
Mr M considered it significant that during therapy Mr Attwell became aware of circumstances and events which involved incest with his older sister which began at the age of 10 and continued for some years.
Dr S prepared a report for the solicitor who was representing the father in the criminal matter. He referred to the father’s self-report that between the ages of 12 and 15 he began spying on his sister who was 2½ years older than him getting out of the bath. The father also told him that he had spied through the window at an adult family friend in the shower. He said that in high school his sister had asked him to lie naked next to her and had touched his genitals.
Dr S expressed the opinion that the father:
…went on to develop a voyeuristic disorder (that is a sexual interest in observing people in a non-consensual manner either in a state of undress or engaging in sexual activity).
The father talked to Dr S about his offending and told him that in 2010 his daughter and step-daughter started bathing together and he was “introduced to seeing her [A] naked” and felt attracted to seeing her naked. He said that at the same time he started watching pornography on a daily basis secretively although it was not underage pornography. He did however use the photos or videos he took of A for self-gratification.
The father said that in 2010 he walked into the bathroom while his step-daughter was there and asked if he could take a photo of her and that in 2012 he went outside with a camera and filmed her through the bathroom window. He said that he was pre-occupied with seeing A naked and whenever he heard the bath water go on it would trigger him and he would have a desire to see her naked. He accepted that he had voyeurism.
Dr S said as follows about the assessment of risk:
In providing an opinion on risk of recidivism it is important for the court to be aware that the quality of expert opinion in this regard is limited, as the scientific foundation has limitations. Any opinion on risk of recidivism is more professional than scientific. Risk denotes a probability of a person in a particular risk group of committing a further offence. It is not an exercise in prediction. Risk fluctuates depending on changes in the person or their environment and thus re-assessment is required over time. The evidence suggests that risk assessment can place a person in a risk group with moderate accuracy. It is not possible [to] categorise the individual’s risk level with reasonable clinical accuracy. In this the court is alone.
After setting out in detail the factors associated with an increased risk of recidivism which were present, absent or ambiguous Dr S expressed the view that the father :
..would be regarded as manifesting a low loading of clinical risk factors usually associated with sexual recidivism.
Dr S expressed the view that on the Static-99 test the father would have been assessed as falling into a moderate to low group risk of future sexual recidivism in the long term.[12]
[12] Dr S’s report page 8 3^rd paragraph
In terms of assessing risk in this case, I first of all accept the proposition that it is impossible for me to make a finding that the father committed the additional offences against A which she alleged.
I have not seen A in the witness box and the allegations she made were not put before me in detail nor tested in cross-examination. There is no extraneous evidence to make it probable that A invented the allegations but there are occasions when allegations are fabricated and it would be unsafe for me to find that the additional offences or offending behaviour occurred or even that there was an unacceptable risk of X being subjected to this behaviour.
The spying and filming behaviour did however occur.
Dr S said that the father was in the category of offenders who had a moderate to low risk of re-offending but that his tendency to voyeuristic urges would always be present. The father’s counsel accepted that and said as follows in written submissions:
Significantly, the father acknowledges the potential to re-offend and the fact that he needs to be ever vigilant.[13]
[13] Father’s counsel’s submissions paragraph 88
The father’s counsel emphasised however that the fact that the father’s paraphilia had not gone away did not mean that X would be at risk of similar behaviour in his care. He referred to Dr S’s evidence where he said as follows:
The paraphilia[14] exists and it will continue to exist and it does require ongoing monitoring. Having said that, I reiterate my earlier statement that people can have ongoing paraphilia and never offend, have a paraphilia and offend and never offend again, and have a paraphilia and reoffend…..It is reassuring when a person with a paraphilia has insight, understands that he has got that predilection, accepts that vulnerability in himself and continues to engage in a positive way in a therapeutic program which every person with a paraphilia would require for the foreseeable future.[15]
[14] A paraphilia is defined as a condition in which a person’s sexual arousal and gratification depend on fantasising about and engaging in sexual behaviour which is atypical or extreme
[15] Father’s counsel’s submissions paragraph 94
This does not of course go so far as to say that there is no risk of the father re-offending and the family report writer was not convinced that there was no risk. She felt that he lacked empathy and she also considered that the evidence suggested that he did not take full responsibility for his actions. She said as follows:
His demeanour was one of cooperation with the interview process however he is assessed as not being entirely genuine in his claim that he takes full responsibility for his offences against A. For example, the father objected strongly to this writer stating he had been convicted of sexually assaulting A. The father stated his view is that because "”I didn't touch her" that his offence did not constitute an assault. A further example is that the father made comments that suggest he holds others as well as himself responsible for his offences. These comments include that there was historically "”sexual tension" between himself and A (which suggests A was complicit in the sexual attraction the father had for her) and the father said he first became aroused by A's nakedness when the mother insisted it was his job to go into the bathroom where A and X were in the bath, to take X out of the bath. The father also stated, if in future he was permitted to have the unsupervised care of X, that X would need to ensure that the father did not see her naked at any time.

Assessment of risk

Assessing risk of sexual harm is a challenging task. In M & M the High Court said as follows:
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 …
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] VR 298 at 300), “an element of risk” or “an appreciable risk” (In the Marriage of M (1987) 11 Fam LR 765 at 770 and 771; FLC 91-830 respectively), “a real possibility” (B and B (Access) (1986) FLC 91–758 at 75,545), a “real risk” (Leveque v Leveque (1983) 54 BCLR 164 at 167), and an “unacceptable risk” (Re G (a minor) [1987] 1 WLR 1461 at 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.[16]
[16] M & M (1988) 166 CLR 69
In Johnson and Page the Full Court put it this way:
1. The decisive issue is and always remains the best interests of that child. All other issues are subservient.
2.      The nature of the risk is best expressed by the term ‘unacceptable risk’. It is an evaluation of the nature and degree of the risk and whether, with or without safeguards, it is acceptable.
3.      Where past abuse of a child is alleged it is usually neither necessary nor desirable to reach a definitive conclusion on that issue. Where, however, that is done the Briginshaw civil standard of proof applies.
4.      The circumstance, if it be so, that the allegation of past abuse is not proved in accordance with Briginshaw, does not impede reliance upon those circumstances in determining whether there is an unacceptable risk.
5.      The concentration in these cases should normally be upon the question whether there is an unacceptable risk to the child.
6.      The onus of proof in reaching that conclusion is the ordinary civil standard.
7.      But the components which go to make up that conclusion need not each be established on the balance of probabilities. The court may reach a conclusion of unacceptable risk from the accumulation of factors, none or some only of which, are proved to that standard.[17]
[17] Johnson & Page
I cannot find that the father offended against A in the more extensive way she alleged and the risk that I must consider is the risk of the father spying on and filming or attempting to film X, bearing in mind the immense harm that discovery of this offending did to A and the havoc it wreaked on the family as a whole.
In my view there is an unacceptable risk of the father behaving in the same way to X.
On the father’s own case what he did between 2010 and 2012 was a manifestation of urges which he had felt since he was very young to spy on naked females including his sister. He took no steps after 2009 when first began having urges in relations to A to seek any help to resist the urges, he perpetrated offences against her in an opportunistic fashion when the mother was absent from the home or asleep, he used the images he took of A for self-gratification and he stopped offending in 2012 only because he was caught.
The father’s urges have not gone away. He admitted that he had felt a thrill at the sound of running water in connection with a teenager having a shower in more recent times and when asked in cross-examination how he proposed to guard against any risk of offending he said that he would not go into the bathroom when X was in there.

The father asks the court to take his word for the fact that he will be able to control any urges to spy on and film X in the future and he may genuinely believe that he will be able to do so, but when he has given in to temptation so often in the past and did not stop offending until caught I cannot simply take his word for this simply because he has done courses and therapy which he did not commence until he was caught.
The father acted furtively in filming A in March 2012; he waited until the mother was in bed asleep before sneaking out to the bathroom window with his mobile phone. I cannot be satisfied that there is no risk of the father opportunistically behaving in the same way to X and the results of the father’s behaviour was catastrophic not only for A but for the whole family.
The mother relocated overseas for a period as a result of her distress and when she returned to Australia, A went to the police and the father was charged. A and the mother had to attend court for an ADVO application and take part in a criminal trial and the mother has been forced to take part in a trial in this court. The mother struggled with her wish for a relationship with the father and her wish to support A which resulted in A suffering additional hurt on top of her hurt at the original offending and the mother now suffering deep guilt about the way she initially responded to the allegations.
There is a real risk that the father may not be able to restrain himself in the future and may offend against X and the consequences of this would be catastrophic for X and the whole family.
The Independent Children’s Lawyer submitted that professionally supervised time or time during the day supervised by the paternal grandmother would be sufficient to protect against the risk in other words render any risk not unacceptable.
For reasons given above, I do not accept that supervision by family members would sufficiently guard against the risk but I accept that time supervised by a professional who was aware of the nature of the risk could protect against the risk.
I will have to weigh up in the conclusion to this judgment whether the benefits of an order for long term supervised time are sufficient to outweigh the detriments.

The recommendations in the Family Report

The family report writer did not think so and recommended that the father spend no time with X.
Recommendations in family reports, especially those prepared by experienced report writers as this one was, are usually given some weight by the court which is assisted by the opinion of an experienced person with professional qualifications and knowledge of relevant research and who takes a dispassionate approach to the matter.
The father’s counsel urged me to place no weight on the recommendation in this report. He said that the report was flawed for a variety of reasons including that the report writer misunderstood the evidence in Dr S’s report, misreported some of the father’s responses to him and wrongly formed the view that the father lacked empathy.
I do not accept these criticisms. The report writer’s interpretation of Dr S’s report is not material for my purposes and I agree with the family consultant that the father lacks empathy for A, a view that is strongly supported by the evidence.
The family report writer was criticised for stating in her report that the father told her that he had had sexual thoughts about X, whereas the father insisted and it was ultimately accepted that what he had said was that he was anxious that he might have sexual thoughts about X.
However the family report writer’s recommendation for a no time order did not rest on an opinion that there was no doubt that X was at risk of sexual harm from the father. She did not express a concluded view about that and her opinion was based on wider considerations including the negative psychological impacts on X of moving between the two households with their disparate beliefs about the father’s offending, the struggle X might have to process any good opinion she formed of the father with the nature of his offending against her sister and the potential impact of such an order on the mother and whether her anxiety might affect her parenting ability. [18]
[18] Family Report paragraphs 95 & 96
I found the family report to be insightful and helpful and in cross-examination the family report writer was able to expand on and explain her opinions and conclusions. However, as in all parenting matters, the family report is only a piece of evidence. Ultimately the court must make the orders it considers in the child’s best interests having regard to all of the evidence, which includes but is not limited to the opinions and information in the family report.

Conclusion

I cannot be sure what X’s views about spending time with her father are at present but this is very much a case in which a child’s views do not determine the outcome.
As noted above, I accept that the risk of sexual harm to X could be rendered acceptable if X spent professionally supervised time with the father. However, orders for long term supervised time are problematic and are not often made and indeed are not usually made if there is no prospect of time becoming unsupervised at some point, and I cannot foresee a time when unsupervised time would be appropriate in this matter.
Not only could X be at risk of sexual harm if unsupervised time occurred, there is also the risk that the father would not be able to resist giving her his version of events about his offending and offering up some criticism of A.
The father said the following to the family report writer:
I’m upset (with A) I’d love to sit around a table and talk things out. I would apologise for what I’ve done but she needs to take accountability for what she’s done. We’re both to blame there.[19]
[19] Family Report paragraph 67
The father may not immediately give in to the urge to tell X his side of the story, but in cross-examination he was very clear to say:
She [X] has been told a lie. In some manner it needs to be addressed so the truth can be told.
He then added:
I wouldn’t discuss it with her – not at the moment, no.
However, given that he has repeated on a number of different occasions that he is upset with A for lying and given that he lacks empathy it is hard to believe that he would not at some point give in to the urge to set X straight about what he considers to be the truth.
This would lead to a situation in this already stressed and fractured family where X had to move between two households in one of which A continued to maintain that the father’s offending was much more extensive than the father admits and where the mother supports her and has conveyed the additional information to X and in the other of which A was considered to be a liar and a degree of anger was felt toward her. This would inevitably create psychological stress for X.
Supervised time would of course protect both against the risk of sexual harm and the risk of the father causing X psychological distress by telling her his version of events and there are occasions when an order is made for supervised time on a long term basis
The advantages of this for X are that she would be able to re-establish and maintain a connection of some kind with her father and through him with the paternal family.
However, the benefit she would derive would be slight if the time was of limited duration and professionally supervised. It could be very unsettling for her and it would not allow her to have much of a relationship with her father and I am not prepared to make an order which would deliver little benefit to her and may unsettle her when it would be very hard for her primary family unit to deal with such an order and may cause considerable psychological confusion for X as she tried to integrate the father she experienced during supervised time with the father described by the mother and A.
I cannot find that the mother’s parenting capacity would be affected if I made an order for supervised time.
The Independent Children’s Lawyer in submissions pointed out that the mother was a person with vulnerabilities and after the incident in 2012, she not only had to cease work and ask her mother to come to Australia but very shortly afterwards decided to relocate to (country omitted) and then came back after about 10 months. Considerable time has now passed and the mother has had time to process things. She is working and has ties in the community There was no medical evidence to establish that her parenting capacity would be affected if an order was made for time to occur and the mother said that if she had to comply with and order she would.
However, the mother has strong views about what has occurred and feels guilt about what happened to A and how she handled the situation. She is determined to protect X and in cross-examination said as follows:
I am refusing to make the same mistake again and I won’t make it.
The mother’s support of an order for supervised time would at best be half-hearted and there is merit in the following submission by the Independent Children’s Lawyer:
……..without the support of the mother and her facilitation of counselling to prepare and assist X for reintroduction and ongoing interaction with her father, then the risk of psychological harm to her is in the ICL’s submission, unacceptable.[20]
[20] Independent Children’s Lawyer’s submissions paragraph 15
This submission was predicated on the view that X was now rejecting of the father and I do not accept that it is open to me to find that, but even absent that the submission still has considerable merit. I am satisfied that the mother would find it impossible to positively support X being re-introduced to her father.
Children who do not have a relationship with one of their parents suffer a loss, even when that has come about due to the actions of the parent. During cross-examination, the family report writer mentioned such outcomes as a child thinking that they are unloved or not loveable enough. Another loss for the child in this case is the loss of a relationship with her extended paternal family. It is most unlikely that the mother and paternal grandparents will ever be able to reach an agreement about X spending time with the grandparents.
However, the father must accept responsibility for the loss visited on X and I cannot because of that loss make orders which will place her at unacceptable risk of physical and psychological harm.
The Independent Children’s Lawyer proposed that if the court determined that X should not spend time with her father, it should nevertheless order that the father be permitted to send her cards and gifts for her birthday and Christmas. Presumably the intent behind it was that if the cards and gifts were sent X would know that she father still loved her.
The family report writer did not support this. She said that she could see no benefit in the child being reminded at regular intervals by the receipt of cards and gifts that a person she used to live with was no longer part of her life, and that it could be unsettling for her rather than of benefit for her. She was strongly of the view that if there was no time there should be no cards, gifts or phone calls.
There is merit in this view and I do not intend to make an order allowing the father to send cards and gifts to X.
The Independent Children’s Lawyer proposed an order that the mother ensure that the father was notified if X was admitted to hospital with a life threatening condition or diagnosed as suffering from a life threatening illness. At first glance this seems an attractive proposition but in circumstances where the father is not permitted to see the child, what would be the benefit of such an order for the child? Would it be reasonable to consider re-introducing her the father when she was gravely ill? An order such as this is a valid order if a parent is seeing a child but the Independent Children’s Lawyer did not explain in submissions why this order was sought and I cannot see how this order would benefit the child.
I am also not minded to make the order proposed by the Independent Children’s Lawyer requiring the mother to obtain advice from a counsellor to implement a plan to prepare X to deal with discovering information about her father in relation to these or any other court proceedings involving the father or her sister A. It is to be hoped that the mother will continue to obtain assistance for X but this is at best a motherhood statement in circumstances and is unenforceable in circumstances where the father will have no involvement in the child’s life.
For all of the above reasons the orders of the court will be as set out at the beginning of this judgment.

I certify that the preceding two hundred and twenty three (223) paragraphs are a true copy of the reasons for judgment of Judge Terry

Date: 22 December 2017

[4] Family Report paragraph 83

[2017] FCCA 3197

22 December 2017

Key Legal Topics

Areas of Law

Family Law

Evidence