Ball & Ball
[2022] FedCFamC1F 1068
Federal Circuit and Family Court of Australia
(DIVISION 1)
Ball & Ball [2022] FedCFamC1F 1068
File number(s): NCC 34 of 2022 Judgment of: SMITH J Date of judgment: 21 December 2022 Catchwords: FAMILY LAW – Parenting – Interim application – Oral reasons for decision – Three children aged 14, 13, and 10 – Where the mother has been charged with a range of offences with respect to the two eldest children including relating to alleged Child Exploitation Material – Where the mother denies all of the charges – Where present interim consent orders provide for the mother to spend supervised time with the children – Where the father says the laying of additional criminal charges is a significant additional fact which warrants a change to a no-time and no-communication order – Where the mother and Independent Children’s Lawyer submit that the children will suffer by loss of the relationship with their mother if the allegations are not true and that supervision is an adequate safeguard – Ordered the previous order for the eldest child to spend supervised time with the mother as per their wishes remain – Ordered the previous order for the middle child to spend supervised time with the mother be amended to be as per that child’s wishes – Ordered supervised time between the mother and the youngest child recommence as soon as possible. Legislation: Family Law Act 1975 (Cth) ss 60CA, 60CC(2), 60CC(2)(a), 60CC(3), 64B, 65AA, 65D, 65DAA(e), 69ZL Cases cited: Banks & Banks [2015] FamCAFC 36
Deiter & Deiter [2011] FamCAFC 82
Goode & Goode [2006] FamCA 1346
Isles & Nelissen [2022] FedCFamC1A 97
Malec & J C Hutton Pty Ltd (1990) 169 CLR 638; [1990] HCA 20
Marvel & Marvel [2010] FamCAFC 101
Mazorski & Albright [2007] FamCA 520
SS & AH [2010] FamCAFC 13
Stott & Holgar and Anor [2017] FamCAFC 152
Division: Division 1 First Instance Number of paragraphs: 117 Date of hearing: 19 December 2022 Place: Newcastle via Microsoft Teams Solicitor Advocate for the Applicant: Mr Byrnes Solicitor for the Applicant: Byrnes Lawyers Counsel for the Respondent: Mr Graham Solicitor for the Respondent: Tony Cox Layers Solicitor Advocate for the Independent Children's Lawyer: Ms McGregor Solicitor for the Independent Children's Lawyer: McGregor Family Law ORDERS
NCC 34 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS BALL
Applicant
AND: MR BALL
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
SMITH J
DATE OF ORDER:
21 DECEMBER 2022
THE COURT ORDERS THAT:
1.The matter be listed on 1 August 2023 at 9:30 a.m. for mention, to occur by way of Microsoft Teams.
2.The Orders of 27 July 2022, 7 September 2022 and 7 October 2022 remain extant, but are to be read so that Y born 2009 (“Y”) may if she wishes to, but is not required to, spend time with the mother when Z born 2012 (“Z”) spends time with the Mother.
3.Time between Z and the Mother is to recommence as soon as possible.
4.The Independent Children’s Lawyer has liberty to apply to re-list the matter for mention prior to the adjourned dated.
IT IS NOTED THAT:
A.The Court is aware of the charges against the mother in relation to X, the charges in relation to Y, and the charges in relation to alleged Child Exploitation Material.
B.The Court understands the Mother’s bail conditions permit compliance with the Orders of 27 July 2022, 7 September 2022 and 7 October 22 as amended today.
C.The Court is informed that B Services are available again, and may be able to facilitate supervised time prior to Christmas 2022. Time should be arranged prior to Christmas if possible.
D.If charges are not proceeded with against the mother, so that there are no outstanding criminal charges, the parties should approach to relist the matter for further directions.
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
SMITH J:
These are short form oral reasons for decision pursuant to section 69ZL of the Family Law Act 1975 (Cth) in an interim application for parenting orders in relation to three children, X born 2008, who is now aged 14; Y born 2009, who is aged 12; and Z born 2012, who is aged 10.
The parties are the children’s father, Mr Ball, 50, and their mother, Ms Ball, 48.
An Independent Children’s Lawyer has been appointed to represent the children’s interests and appears in these proceedings.
The parties married in 2009 and separated on about 26 July 2021.
In summary, the parties have and have had a high-conflict relationship which has negatively impacted on the children.
There are presently consent Interim Orders in place which were made on 27 July 2002, and amended by consent on 7 September 2022 and again on 7 October 2022.
The present Interim Orders provide for the mother to have supervised time with the children and to send them text messages. The supervision arises on a without admissions basis where the mother had been charged with criminal offences relating to the children.
In late 2022, after the last consent amendment to the Orders, further charges were laid by police against the mother. I understand they are still within the DPP awaiting certification.
The mother has been charged with a range of offences relating to the children. She denies all of the charges. I am not in a position to make any findings about that, given this is an interim hearing. The father was aware of all the factual circumstances underlying the laying of the charges at the time the consent orders were made in July of 2022. The father says although he knew about the factual circumstances, which I will outline later, the laying of additional charges by the police is a significant additional fact which warrants a change to a no-time, no-communication order and that is what, in effect, is sought in his orders in his Application in a Proceeding filed on 16 November 2022.[1]
[1] MFI 1, page 5.
The mother says there are no changes to the alleged facts since the consent orders were entered, except that based upon already known alleged facts, the police have elected to lay charges. She notes, of course, that the DPP have yet to certify the charges. She says the police decision does not change the known facts and where the parties have entered into consent orders, with the agreement of an Independent Children’s Lawyer and taking into account the report of a Single Expert who was aware of all the alleged facts, it would not be appropriate to change the current Orders. She thus seeks a dismissal of the Application in a Proceeding and that is in effect what is sought by her Response filed 13 December 2022.[2]
[2] MFI 1, page 27.
The ICL substantially supports the mother’s position that the current Orders are broadly appropriate, although she does seek some amendments noting that Y is turning 13 and there is evidence that Y is struggling with the current situation and does not wish to spend time with her mother at the moment, and Y is not currently doing so.
The ICL says that the order regarding Y should be for supervised time when Z sees the mother at Y’s wishes, as set out in the ICLs written submissions at MFI4.
The Background
The facts in this case, in particular the voracity of all criminal charges against the mother are hotly contested.
The short facts are that the parties separated in July of 2021.
The mother continued and continues to live in the six-bedroom free-standing home in C Town and to operate the family’s business.
The father lives with his parents in C Town and operates another business. I understand that situation has not changed since July of this year.
The mother was the children’s primary carer and post-separation, the children continued living with the mother for a period.
Neither of them have re-partnered.
There was an incident in late 2021 between the mother and X.
An AVO was issued in late 2021, protecting the mother from X, although there are now allegations that the mother assaulted X.
X then changed residence from living primarily with the mother to living with the father. The AVO between them has lapsed. However, X has spent, as I understand it, no time with the mother since that date.
The expert, whose report I will come to in due course, was concerned by things said to her by all the children that suggested the parents have substantially involved them in this dispute, which creates complicating factors.
The mother commenced these proceedings in January of 2022.
A large part of the reason the matter is before me is because of certain photographs and videos which are alleged to contain child exploitation material within the meaning of the Crimes Act.
The information before me about the photographs and videos is limited. I will just refer to them as the photographs from here on.
The Magellan Report, which is in the joint court book commencing at page 128, says the following about the photographs at page 131 with the date 9 April 2022:
In [early] 2022, [Mr Ball] arranged an IT service to perform a download of a laptop owned by himself and [Ms Ball] (in the context of property settlement).
The report states the paternal grandmother reviewed the downloaded contents and discovered sexually explicit photos of [X], [Y] and [Z] taken eight or nine years ago when they were infants / toddlers. Images depicted the “three young children […]”.
[Mr Ball] reportedly denied any prior knowledge of the images.
The paternal grandmother and [Mr Ball] provided all materials to their solicitors. The solicitor reported the matter to Police […]. It is unknown who was responsible for taking the photographs. Police have seized laptops from both [Ms Ball] and [Mr Ball]. There was one video reported where [Ms Ball] told the “young” children to “do the trick” […].
I will come back to the photographs later, but make the note it was raised in evidence that the father is the person who, with his mother, became aware of the images and provided all the material to the solicitors so that when the Consent Orders were made, he was aware that his solicitor had reported the matter to police. I also note, since it is relevant to the issues that have been raised, that the report dated 9 April 2022 is the same report in relation to allegations of sexual assault against X.
So coming then to the allegations of indecent behaviour or dealings with X, at page 129 of the joint court book, the Magellan Report sets out information that was provided on 15 February 2018:
The report stated [Ms Ball] disclosed that she would [inappropriately touch X] for her own sexual gratification. [Ms Ball] reportedly indicated that this was normal behaviour, happened all the time and could not see anything wrong with this behaviour. [Ms Ball] stated [X] was her son and she could do what she liked to him.
As a consequence of that report, the Magellan Report sets out at page 134 of the joint court book that on 19 February, there was a police-led JCPR interview of X:
On 19 February 2018, [X] participated in a Police led JCPR interview, conducted at his school. [X] described the composition of his household, including [Ms Ball], [Mr Ball] and his siblings [Y] and [Z]. [X] detailed things he liked about each household member and activities that he enjoyed doing at home. [X] indicated that his mother was caring and supportive. [X] did not identify anything he disliked about his family members and made no disclosure of any harm to himself, [Y] or [Z].
The mother was told about this issue on 19 February, as set out also at page 134 of the joint court book and the Magellan Report on 19 February 2018 and denied this.
No dangers or risk were considered to be identified and the matter was closed.
On 9 April 2022, which is the same date as the notification about the child exploitation photographs, according to the Magellan Report, there was an allegation raised. The same allegation was raised about X again. On 11 April, X was interviewed by New South Wales Police:[3]
On 11 April 2022, NSW Police interviewed [X]. [X] made the following disclosures:
•[X] disclosed that [Ms Ball] had indecently assaulted him on two occasions. Once in 2018 and once in 2020.
•On one of the occasions, [X] stated he was in the shower and [Ms Ball] walked into the bathroom and proceeded to [inappropriately touch him]. [X] disclosed when she did this she said “Don’t worry this is normal”. [X] stated that he screamed at her, telling her to get out and she replied by telling him again “this is normal”. [X] stated she eventually walked out.
•[X] disclosed that on another occasion, [Ms Ball] attempted to touch him while they were in a hallway in the family home. [X] disclosed that [Ms Ball] chased him while attempting to touch him before eventually giving up.
•[X] has also told police [Ms Ball] has pinned him up against a wall using her forearm, causing him pain.
[3] MFI 1, page 135.
The following day, on 12 April 2022, the police attended the mother’s home with a search warrant in relation to the photos and later that day the mother was charged with multiple criminal offences, relating to the allegations concerning X. The children then moved to live with the father.
The mother denies the allegations. She points to the high-conflict relationship. She points to prior failure by X to make any disclosure in 2018. She points to the fact that the disclosure was made only after the AVO against X, after X had commenced living solely with the father and spending no time with her and that it was reported to DCJ on the same day as the allegations regarding the photos.
I note that these are serious allegations in respect of X. I note the mother’s evidence that she had phone calls with X where she said it was clear he was being alienated and turned against her, and that the father was including X in the parties financial dispute.
The mother’s case, as I understand it, although she did not spell it out very clearly, is that X is not telling the truth, and the inference would be that the only reason for X not to tell the truth is because the father is seeking not only to alienate X from her, but to use this as a trump card to win these proceedings.
I cannot make any findings of fact. It is a serious charge. X has given a statement to police that certain things occurred and prima facie that is evidence that those things have occurred. However, X is a child and unfortunately children can be manipulated to say things that may not be true. If, of course, that was the case, then the father is one who has committed a serious act of child abuse by involving X in this way.
The principles which I will come to later make it clear that I can make no finding of fact, but nevertheless I must take into account the very serious allegations made against the mother which the police have laid charges in relation to, noting that I am not sure that those have been certified yet.
In mid-2022, the mother was charged with assault on Y. The charges are that she pinched Y and, on another occasion, she bent Y’s fingers back.
As I said, I read the mother’s affidavit, she says the DPP have not certified any of those charges or had not, at the time of her affidavit, and the suggestion was the DPP are struggling to determine whether they are appropriate. However, given the very extensive delays in the criminal justice system which arose out of COVID, it may just be that they are overwhelmed by work.
A family report was ordered by consent early in the proceedings and was provided by Ms D and dated 23 June 2022. There is no suggestion she is other than a highly qualified expert. It is a lengthy report and it is not appropriate for me to try and read all of it into the Judgment, but it is relevant to highlight certain aspects, including the fact that the interviews with the parties occurred over the period April to June 2022.
It is clear that Ms D was aware of the criminal charges that had been laid in relation to X and Y and it was also clear that she was aware of the existence of the photos and these were being considered by police in respect of the charges now laid.
Neither I nor the expert have seen the photographs, I note the expert asked the mother about the photographs at page 71 of the joint court book, paragraph 46:
When asked to comment on the images of the family computer as reported in the police statement, [Ms Ball] said the statement was distorted, as the descriptions in the statement were out of context. [Ms Ball] said she sees the children as children. She said there are many photos and videos on the computer and she sees her children as them smiling and not sexual. [Ms Ball] said that none of the charges will go through; she said there will not be anything in it. She said she loves her kids. [Ms Ball] said she has felt so distressed by the way the children were taken to the police.
It is clear the mother says these are just innocent childhood photographs and there is nothing to it. It is difficult without having seen the material to know what weight to place on the police decision to charge or the mother’s evidence that they are innocent photos.
I note that the category of the charges and that there can be difficulties in that area where some people will consider, for example, a naked six month old on a bearskin rug to be child abuse material and others will not. But having not seen the material and not having the descriptions or the particulars of the images, it is difficult for me to know, although I do note the reference to “do the trick” is very concerning.
The father’s statement to the expert about the photographs is as set out at page 84 and 85 of the joint court book. Paragraph 85 also sets out his concerns:
[Mr Ball] was asked about his concerns of [Ms Ball] sexually abusing the children and whether he had concerns beyond the information about [X]. [Mr Ball] said he is unsure about whether or not [Ms Ball] perpetrated sexual abuse on [Y] but things from what the police have said to him that [Y] may have been subject to a little bit of abuse. [Mr Ball] said that, regarding the police investigation, he has not seen any material apart from a couple of photos of the children naked. [Mr Ball] said that he found a few photos on the computer that rang alarm bells that were beyond normal family photos of naked children running around. He said that when he found the photos, he expressed his concerns to his solicitor. [Mr Ball] said that the police took the family computer and he is unsure of what other photos were found. He said he did not take family photos or store photos on the computer. [Mr Ball] said that he is concerned about what the police have found but does not know anything about their investigation.
It is not clear if that is consistent with what is in the Magellan Report as he says to the Expert that he had not seen them, but I do not understand quite how that gelled with the Magellan Report where he and the grandmother have seen something. In any event, that has no impact on my decision. The relevance is that the Expert was clearly aware there were photographs said to be child exploitation material and that they have gone to the police.
I have said the reference to “do the trick” in the Magellan Report at page 132 of the joint court book is concerning, but lining up with what the mother says at page 138 to 139 of the joint court book, on 10 May 2022 where Y was interviewed, she was being asked about who took photographs of them in the bath and whether she remember the mother taking a photo of her and Z in the bath. I do not know how old they were, but many people would not consider, if they were toddlers, that child exploitation material. This is where the category can become difficult, depending upon community expectations.
But it seems to me that it is clear that the Expert has as much information about this as I have and that she was aware that the police were considering the issue.
Continuing with the Expert Report, I note the father raised concerns about what was said at paragraph 65 of the Expert Report on page 78 of the joint court book:
[Ms Ball] said that post separation the children reacted badly to the separation and were awful to her and her mother when they came home from after seeing their father. She said she is concerned about the impact on all of the children, but particularly [Y] and [Z], of them not spending time with her. She said she is very worried about [Y] and [Z]. She said [X] tends to be aggressive towards [Z]. She said she believes there to have been no welfare checks on the children and she thinks they will be fretting and decide themselves and that, despite the Independent Children’s Lawyer telling her that they are fine, she is very worried. [Ms Ball] said she is concerned that she cannot talk to them and tell them that the current situation is temporary. [Ms Ball] said she is bewildered by the whole situation.
He submitted that I would draw from this an inference that because she is bewildered, she may not be able to behave appropriately, even under supervision.
It seems to me that Ms Ball’s statements there are consistent with her case. If she is indeed innocent of all that has been alleged and the children are no longer seeing her, she may well be bewildered.
The question of whether or not she is likely to be unable to control herself in supervised time seems best answered to me by the fact that pursuant to the Consent Orders, supervised time occurred for a period of time without any apparent issue.
Coming back to the Expert Report, the Expert sets out a range of concerns under the headings of Risk Factors at paragraphs 11 to 14 which include, in particular, each parent’s allegations that the other perpetrated family violence of physical, emotional, psychological and verbal abuse and I note that there is significant dispute there. I note what is in the affidavits, including the mother’s affidavit, but again I can make no finding of fact.
What does appear clear from what the children said to Expert is that they were exposed to family violence as alleged and that this has had a significant impact on them.
The Expert noted the criminal charges. There is also the issue that X is of the view he has been abused, which creates risks either because he has been abused and there has been a significant breach of trust by the mother, or if he has not been abused but has been falsely convinced he has been abused by the father, which would be a significant breach of trust by the father, or if he is merely being persuaded to intentionally lie, again that would be a significant abuse by the father. These are all possibilities that can only be considered as possibilities at the moment since there has not been a trial, or a criminal trial.
The ICL also raised the risk, for the purposes of my consideration - and it was one that the Expert did also consider – of the impact on the children of having no time and no communication with the mother, particularly if it turns out the allegations are not correct, and also the difficulty of repairing the relationship between the children and the mother if it turns out the charges are not certified, or are certified and they are not proven to the criminal standard, or if before this court and applying the civil standard it is still found that it is not proven, and that there is no risk, what happens if they have not had any time with her until after there is a criminal trial and a trial here. I note that I was told a criminal trial would be unlikely to take place until about a year’s time.
However, I have taken into account my own experience with matters in my docket that have been waiting for criminal trials for more than a year, that were meant to have criminal trials in the last three months but which were not reached because they have been over-listed, and these are cases where there have been serious charges outstanding and they have been awaiting trial for a couple of years now. They have now been told they will not get on until next year. This is not a criticism of the criminal court system. The problem is that COVID-19 has created enormous backlogs. So it seems to me that if there is a no-time, no-communication order, the children will not see the mother for, at the very least a year, but it may well be two or more years.
The Expert summarised her opinions in paragraph 2(1) of her report. At page 119 of the joint court book, she discusses the risks. She notes that in terms of the children’s views, that X expressed his wish to live with Mr Ball:
[X] expressed is wish as continue to live with [Mr Ball] and possibly see his mother along with his siblings on special occasions. He expressed ambivalence about the idea of the latter.
I think that is important. The Expert felt that given his age, it was appropriate for weight to be given to his wishes. It is complicated where he is the alleged victim of sexual abuse, but he is of an age and where the Expert considered that if he wanted to see the mother, he should be allowed to and noting, of course, that the mother has not been convicted of anything and denies everything. That also has to be taken into account.
The Expert noted Y’s wish to live with the parents on an equal time arrangement. This was six months ago. Now, obviously that has changed and the reasons why that has changed are not clear.
It may be because she has decided she was abused by the mother. It may just be because, as appears to be the case from her counsellor, the significant parental stress these proceedings have put her under, or the parents have put her through with their conflict, may have just made it too hard for her not to just align herself with the parent she is living with. But certainly that was her view six months ago. And again, the Expert felt that Y’s age meant her view should be given weight, particularly because the Expert formed the view that Y was a sensitive and thoughtful child. However, the Expert did note that she was:[4]
…a child triangulated in her parents’ dispute, her wishes are likely to have been influenced and therefore caution should be given to placing weight on [Y’s] wishes in the interim.
[4] MFI 1, page 119, paragraph 201(b).
This raises the question of whether the father has intentionally or otherwise influenced Y to go from wanting to live equally with her mother to not wanting to see her at all. However, I cannot make any finding about that either.
Z expressed his wish to live with the mother and to see the father every second weekend. Now, of course, the Expert points out that Z is too young for his wishes to be given great weight. He is not in a position to assess his own safety. But the Expert did take the view that:[5]
It is suggested that [Y] and [Z’s] wish to see their mother be facilitated on an interim basis, in a plan which is stable, workable, and while investigations proceed.
[5] MFI 1, page 120, paragraph 201(b).
Now, the Expert discussed a range of issues and risks. What she said at page 120 of the court book under paragraph 120(c):
As discussed in the evaluation. The greatest risks identified would appear to be being exposed to the parental conflict, and poor parenting practices. [X] has identified concerns of significant harm in his mother’s household. Note that [Y] and [Z] have no identified the same level of concern about their experiences.
(As per the original)
The rest of the Report there and her concerns about it speak for themselves. I note she set out her recommendations from paragraphs 202 to 209, commencing at page 122 of the joint court book:
202. It is recommended that [X] live with [Mr Ball] and spend time with [Ms Ball] in line with his wishes.
203. It is recommended that [Y] and [Z], as an interim plan, live with [Mr Ball].
204. It is recommended that [Y] and [Z], as an interim plan, spend time with [Ms Ball] twice a week.
205. It is recommended that [Y] and [Z] spend time with their mother once during the school week for approximately 3 hours to incorporate after-school activities such as afternoon tea for dinner and attending a library and once over the weekend for approximately 4 to 5 hours to incorporate recreational activities, such as a meal, meeting outdoors in a park with the pet dogs.
206. It is recommended that [Ms Ball] and the children spend time together, in the interim plan, under supervision.
207. It is suggested treat trauma informed forward focussed therapy be made available to each of the children.
208. It is recommended that [Ms Ball] and [Mr Ball] each undergo a psychiatric assessment.
209. It is recommended that an updated Single Expert Report be provided to Court in line with the Magellan list processes as quickly as possible after the allegations have been investigated.
As I have said, the report speaks for itself. It is clear that the Expert was aware of the factual issues and each party’s view of them and she had no access to the child abuse materials. It is clear that, applying her expertise in the social sciences and noting the various risks, taking into account the possibility that all the charges as laid and which were laid based upon the photographs are true and the possibility that they are not, and she sought to balance the questions of risk including the risks, for example, of hurting the parental relationship with the mother and appropriate safeguards together in the context of these disputed facts.
The Expert’s opinions are not tested, as the father quite correctly submitted. However, on an interim hearing I can give the opinion such weight as I think appropriate taking into account all of the evidence. It seems to me to be a carefully considered report by an experienced expert who has all the relevant information on the issue before me and as such I give it considerable weight.
Now, it was submitted that the Expert did not know the police would lay charges in relation to the photographs as they did, however she knew about the photographs and the allegations and the parties respective positions.
In circumstances where the police have laid charges but the DPP have not certified them yet after some time, it is not clear whether or not the charges will be certified and proceed.
Certainly the additional charges are an additional factor, but it is not at all apparent to me that that the decision to lay the charges is something that is likely to have affected the Expert’s opinion, but I cannot know.
Nevertheless I do know what the Expert’s opinion was with all the relevant information, but for that one piece of information, and I know what her recommendation was at that time and I give weight to that as an expert opinion which, to the extent to which an untested opinion can be relied upon, I think I should give weight to.
On 11 July 2022, a copy of the Magellan Report was given to the parties and I have made reference to some of the material there.
The parties then, together with the ICL, about a month later after the Expert Report, on 27 July 2022, by consent with the concurrence of the ICL entered in to the Consent Orders.
The relevant orders started on 27 July 2022. Orders at (1) and (2) were that Y and Z would spend supervised time with the mother twice per week on days and times as facilitated at Interrelate and that, consistent again with the Expert Report, X would spend time with his mother as per order (1), which was to say with the other two children, if he wished to do so. There were also orders that during the time the mother spends supervised with the children, she would not discuss these proceedings or the criminal proceedings.
There is a range of other Orders, but they were the principal ones that are in issue and it is order (1) and (2) that the father seeks to have dispensed with.
On 7 September, there were again Consent Orders, again reflecting effectively the Expert’s opinion and there was a change to B Services, which is a community supervision group, as I understand it. And at order (11) the father consented to the mother sending one text message to the children on a daily basis as long as they make no mention of these proceedings or pending criminal proceedings, the messages are short and child-focused and the father is copied in to such texts.
Now, they were then amended again on 7 October which had to do with one visit in and one visit out of the centre and I note that it was pointed out, it was quite clear from the Expert’s Report, in terms of what she suggested as being the appropriate activities that could be undertaken in terms of supervision, she had in mind the supervised time would at least sometimes be outside centres.
In late 2022, the additional charges were laid relating to the mother. The mother’s bail conditions prevented her from having contact with the children. Ultimately the question of bail conditions went before a Judge of the New South Wales Supreme Court. His Honour noted that while the bail conditions were appropriate in the context of criminal proceedings, it would be appropriate to refer the issue to this specialist Court who has the benefit of a specialist Expert and also an Independent Children’s Lawyer to address the children’s best interests.
As I understand it, the outcome of that bail hearing, as set out in his Honour’s judgment at 146 of the joint court book, is that additional orders were made, so that the bail conditions would be amended or there would not be a breach if this Court thinks that it is appropriate for the children to spend time with the mother or to be able to spend time with the mother.
I note that part of the argument was around whether or not the changed circumstances were sufficient to warrant a change of the interim orders. However, this is not a Rice & Asplund issue in that respect. It seems to me it is not a question of whether the change is sufficient to enliven the jurisdiction but whether, given all the material before me and taking into account the entirety of the material that I have, in my view, the best interests of the children require different orders to be made. The existence of the consent orders is one factor that I take into account, noting the father says he regrets in hindsight agreeing to those orders, but if they are not in the children’s best interests they must be amended.
In effect, the father, the mother and the ICL each seek slightly different parenting orders, as defined in part 7, division 5. I note section 64B and the Court’s power to make such orders in 65D.
The paramount consideration is the children’s best interests see 60CA and 65AA. The primary considerations when determining what is in each child’s best interests as set out in section 60CC(2) are first and foremost the need to protect the children from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence, and secondly the benefit of having a meaningful relationship with both parents.
Of course, greater weight is to be given to the protective factor as per 60CC(2A) and these are the so called “twin pillars”, which Brown J referred to at paragraph 3 in Mazorski & Albright [2007] FamCA 520.
I note that there are a plethora of additional considerations in section 60CC(3) but as the Full Court said in Banks & Banks [2015] FamCAFC 36, from paragraphs 48 to 50:
It should also be said that in parenting proceedings, as in all civil litigation, it will be the issues that are joined that will dictate which s 60CC factors are relevant. By their nature, interim parenting proceedings should be confined to those issues which, in the best interests of the child, require determination prior to a proper determination at a trial. The fact such disputes are commonly dealt with in overcrowded court lists makes it even more desirable to identify with precision those issues which can, or should, be resolved on an interim basis.
Although the primary judge discussed all the potentially relevant factors in her ex tempore reasons, that luxury will not always be available. Furthermore, there is a risk that in discussing every s 60CC factor, the judicial officer may lose sight of the forest for the trees. It is also important to stress here that the requirement to “consider” each factor does not mean each must be discussed, especially where the evidence leads inexorably to a particular conclusion: SCVG & KLD (2014) FLC 93-582.
When it is obvious that the findings made as to some of the s 60CC factors will be determinative of the child’s best interests on an interim basis, it is a sterile and unnecessary exercise to address other factors. Moreover, it will be a sterile exercise to determine whether or not particular facts are disputed if they are relevant only to one of the non-determinative s 60CC considerations. Properly understood, we do not interpret what was said in Goode as meaning that in an interim case, each and every fact must be characterised as disputed or not; and that each s 60CC factor must be traversed where it is obvious on the facts and issues joined that there are only one or two decisive factors.
(As per the original)
It is quite clear that the parties have joined issue on the question of risk here in the context of what are serious criminal charges.
I have not been asked to make orders as to parental responsibility and it is not apparent to me that I ought to, and so I will not deal with that issue.
The presumption does not apply in any event, given the material about both parents to the Expert Report, however even if it did this is not a case where equal time or significant substantial time is feasible, nor being sought by anybody.
I note the principles in Goode & Goode [2006] FamCA 1346 (‘Goode & Goode’), and in particular what was said at [68] of that judgment:
…the procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry is “significantly curtailed”. Where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible.
I also note having said that, that paragraph of that decision was referred to in Eaby & Speelman (2015) FLC 93-654 where the Full Court said at [18]:
Her Honour early in her reasons referred to Goode & Goode for guidance as to the correct approach to the determination of interim parenting proceedings. It is true that in Goode & Goode, at [68], the Full Court said that the circumscribed nature of interim hearings means that the court should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. However, that does not mean that merely because the facts are in dispute the evidence on the topic must be disregarded, and the case determined solely by reference to the agreed facts.
I note that this is one of those cases where, as they also said in Goode & Goode at [81]:
In making interim decisions the court will still often be faced with conflicting facts, little helpful evidence and disputes between the parents as to what constitutes the best interests of the child.
I note the statutory pathway and I have identified the competing proposals, issues in dispute and as such, few agreed or uncontested facts as there are. I have in mind what was said by the Full Court in Marvel & Marvel [2010] FamCAFC 101, that:
120. As has frequently been emphasised interim parenting proceedings, and orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders. Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted. This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their child or children. Interim parenting orders are frequently modified or changed after a final hearing, and any allocation of parental responsibility made at an interim hearing is disregarded at the final hearing (s 61DB).
On the same basis, in SS & AH [2010] FamCAFC 13 (‘SS & AH’) at [88], the Full Court said that:
…findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge’s intuition may suggest that the finding will be borne out after a full testing of the evidence.
And I have in mind that I have no way of knowing what the outcome of any of these criminal charges will be or what findings might be made in this Court if there is, even if there is no criminal hearing. I have to assess risk as best I can and I note what was said in 2010, as I said, in SS & AH at 100:
…Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.
Along a similar line in Deiter & Deiter [2011] FamCAFC 82 at [61], the Full Court said:
The assessment of risk is one of the many burdens placed on family law decision makers. Risk assessment comprises two elements – the first requires prediction of the likelihood of the occurrence of harmful events, and the second requires consideration of the severity of the impact caused by those events. In our view, the assessment of risk in cases involving the welfare of children cannot be postponed until the last piece of evidence is given and tested, and the last submission is made. We accept, however, that it is always a question of degree depending on the evidence that is before the Court.
Now, I note the classic statement about unacceptable risk in the High Court in M v M (1988) 166 CLR 69 where The High Court at [25]:
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.
I also note what was said in Isles & Nelissen [2022] FedCFamC1A 97 in particular at [7] and [8], about the issues of possibilities, applying on Malec & J C Hutton Pty Ltd (1990) 169 CLR 638, and the issues that I need to look at, which are particularly complex on an interim hearing.
In note what was said in Stott & Holgar and Anor [2017] FamCAFC 152 (‘Stott & Holgar’), where quoting a former justice of this Court, the Full Court said:
… unacceptable risk in the High Court’s formulation requires two separate steps. Is there a risk, and is it unacceptable? The concentration by the High Court is upon both the nature and the degree of risk in the particular case. Its formulation is all about balance. In some cases a risk is ‘acceptable’ when balanced against other factors and other orders. The object of safeguards is to convert an unacceptable situation to an acceptable one where that is feasible and is of ‘benefit to the child’ …
(As per the original)
The mother does not concede that she presents an unacceptable risk to the children because she disputes all of the allegations. However, for the purposes of these proceedings, she has entered into consent orders, which she says should stand, which in effect proceed upon the basis that she does present an unacceptable risk, otherwise supervision would not be required and orders around communication would not be required. But her case, which is supported by the ICL, is that taking a cautious approach and assuming unacceptable risk, those risks which may exist to the children of either physical or psychological harm are ameliorated by the safeguards of supervision.
I note that there is a contest about facts but at the moment, it was not contested that there would be a benefit to the children in having a meaningful relationship with the mother as I understand it.
As the mother and ICL do not seek unsupervised time we therefore have an implicit acceptance, without admission by the mother, that the Court should take a conservative approach and limit the time and have it only as supervised time as if there is an unacceptable risk.
The real question then is given the serious nature of the allegations made and taking into account such evidence as I have, when I undertake that balancing that is referred to in cases such as Stott & Holgar, is it in each of the child’s best interests to have the current orders as proposed by the mother, the current orders as amended as proposed by the Independent Children’s Lawyer or that they should have no time and no communication with the mother as proposed by the father?
It seems to me that whilst there was a lot of dispute around what the actual risks were, the relevant risks at the moment are what risks the children face in having time with the mother under supervision and the prescribed text communication.
The father has said that given the serious nature of the allegations and now that charges have been laid, the risks of even supervised time are too great. He submitted that supervision is not perfect. There is the risk that X could be traumatised, even if he chooses to go and that as a possible witness in a criminal trial he could be influenced. That is true.
Y does not want to spend time with the mother now, but we do not know why, noting that after the events where she was said to have been assaulted, she still wanted to live with the mother, at least half the time. We know Z does want to live with the mother. They are not likely to be witnesses in a criminal trial.
The ICL and the mother’s position is that in undertaking the weighing and balancing and considering whether the safeguards make an unacceptable risk acceptable I should give significant weight to the expert opinion.
That opinion identified not only the risks raised by the father but competing risks as raised by the mother, which the ICL stresses, about the risk the children will suffer significantly by loss of the relationship with their mother, particularly if it turns out the allegations are not true or there is a misunderstanding as to what is in the photographs and whether they are innocent photographs of toddlers splashing in a bath, as opposed to child exploitation material. I again note that the Expert did not know that there was going to be charges laid but she did know from the parties what they each said the photos were.
I note the Expert’s opinion has not been tested but having read it seems to be a very carefully considered opinion from an experienced social scientist, which should be given suitable weight.
I do not think this is a clear cut decision. However, on balance, I think taking into account the Expert’s opinion, noting that the additional facts of the charges, and considering all the material and the competing risks, it seems to me that the safeguards of supervision mean that the identified risks to the children implicit in the Orders as they currently are, modified to some extent as proposed by the ICL, are no unacceptable and that those orders largely remain in their best interests. The current orders, to be modified slightly, do not create an unacceptable risk and I think it balances the risks that the children face of losing a relationship with the mother, if it turns out that the allegations made are not correct, must also be taken into account and support the current orders which I will modify somewhat.
It seems to me that if X wishes to spend time with the mother when Z and/or Y go, he should be allowed to make that decision for himself, and I will leave that order.
I note that whilst I considered whether Y should be made to spend time with the mother, it does seem that she is suffering considerable stress. There is a real risk that even if she is ordered to go she may not go. There is a risk she will lose the maternal relationship if she is not ordered to go and does not go. However, if she is forced to go that may have psychological stress for her which may itself cause damage.
In those circumstances, given her age and given what the Expert said about her maturity, I also consider the ICL’s proposed variation to allow Y to go with Z as per her wishes to be appropriate.
In effect, Y will have orders the same as X’s. I note she is also not a witness so I do not see any issue with that.
Z wants to see his mother. He is not a potential witness. I do not think that he is at any unacceptable risk in a supervised setting. I note that there were no issues with supervision in the past. I note there have been no issues with text messages in the past. The father will clearly have access to the text messages and should the mother breach the rule around what is appropriate text messaging, doubtless I will hear about it soon thereafter, as will the police and she will be well aware of that.
I propose to effectively make orders that amend order 1 of the Orders of 27 July 2022, as amended by the Orders of 7 October 2022, so that they relate only to Z. And then, to amend order 2 of 27 July 2022, so that it includes not only X attending as per his own wishes but also Y attending as per her own wishes.
I am told B Services are again available and I will just make that as a note. I will note that in my view the supervised time should occur as soon as possible and if possible before Christmas Day, so that Z at least can see the mother before Christmas.
And I will note that the Court is aware of the mother’s bail conditions and understands that these Orders, if complied with, will not constitute a breach of her bail.
Those are my reasons.
I certify that the preceding one hundred and seventeen (117) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Smith. Associate:
Dated: 12 January 2023
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